The main legal issue, in this case, is to clarify when it is permissible or rather unlawful, to interfere with privacy and thus the general right of personality through advertising/customer survey using electronic communication?
In order to reach a conclusion, the Federal Court of Justice (Bundesgerichtshof) examines several questions:
- whether a customer rating is to be considered advertising. The BGH states in the light of article 2 letter a of Directive 2006/114/EC, which defines ‘advertising’, that a customer survey is to be considered as such.
- whether it is permissible to send advertising through e-mail. The BGH finds that it is only permissible with the prior consent of the customer. (article 13 paragraph 1, recitals 1, 12 and 40 of Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector)
- whether the simultaneous sending of non-consented advertising (customer rating) together with a lawful sending (an invoice) through e-mail might be permissible. The BGH denies this question.
- whether the plaintiff has against the defendant a cessation claim action. The BGH confirms the right to a cessation claim, because of an illegal interference with his general personality right, however in an analogous way from article 823 paragraph 1, article 1004 paragraph 1 sentence 2 BGB. (not out of UWG regulation).
In which direction the necessary weighing of the conflicting interests of the parties is to be balanced, considering the interference with the plaintiff's general right of personality and the legitimate interest of the defendant to contact its customers for the purpose of advertising. The BGH reaches the conclusion that it must be in the detriment of the defendant. (Even if the impairment for the consumer in the sense of article 7 paragraph 2 UWG is not significant, the general permission of this kind of method for advertising would lead to a significant impairment by the sum effect.)