Unfair Commercial Practices Directive, Annex I, 26.

The trader carries the burden of proof of consent when performing solicitations by telephone. A confirmation email in the course of an electronic double-opt-in-process does neither prove the customer's consent to advertising calls nor does it ease the advertiser's burden of proof.

The plaintiff is a consumer center and the defendant is a health insurance company. In 2003 the defendant signed a cease-and-desist declaration with regard to unsolicited calling if the required prior consent has not been obtained.

Later the defendant had calling centers contacting potential customers including inter alia the legal in-house counsel of the plaintiff and another witness. The plaintiff claimed a payment of a penalty and cease-and-desist from such unsolicited advertising calls to the consumers. The defendant claimed to have obtained the witness's consent in a course of a double opt-in-procedure as part of an online raffle. In order to prove such valid consent the defendant presented evidence in form of a template of the online raffle form to be filled in and a list with data which inter alia included IP numbers.

 

What are the requirements for sufficient evidence of consent in order to avoid a practice constituting an unsolicited solicitation? 

The court held that the calling of customers constituted unwanted solicitations pursuant to § 7 UWG. The defendant did not provide sufficient evidence for the consumer's valid consent to such calls as from the evidence provided the participation in the raffle could not be proven. Neither the mere templates nor the lists with IP numbers suffice to prove an explicit consent of the customers, the court held. A required print-out of a confirmation mail sent from the witnesses' email accounts was not presented as evidence by the defendant. The court holds that the defendant carries the burden of proof with regard to the consumer's consent. However, even if a confirmation email from the consumer's account would have been sent, the consumer can still claim that he was not the sender in the particular case. For such arguments he carries the burden to provide sufficient evidence.

Within the judgment the court also stated that the wording of the claim for cease-and-desist was sufficiently precise even though it widely adapted the wording of the Act against Unfair Competition.

The court also held that the prohibition of unwanted solicitations (advertising calls) complies with provisions as set out in Directive 2005/29/EC.

 

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The court ruled in favor of plaintiff and dismissed the appeal.