Privacy & Information Security Law Blog

On November 3, 2009, the Higher Regional Court of Düsseldorf (OLG Düsseldorf, Az. I-20 U 137/09) ruled on the duty to verify consent for email marketing with respect to purchased email addresses. According to the Court, a company that purchases email addresses for marketing purposes must verify customer consent itself – the company cannot rely on a data broker’s statement that it obtained the necessary consents.

This decision came in an interim injunction proceeding to cease unsolicited email marketing. The Court ruled in favor of the claimant, finding that the company failed to take necessary measures to verify consent.  The claimant was able to obtain injunctive relief against the defendant under Sections 8 (1), (3), 3 (1) and 7 (2) No. 3 of the Unfair Competition Act.  The Court specified that the defendant did not have a duty to verify individual consents by phone, but could conduct verification by reviewing the stored data of each customer.  Since the law requires "explicit" customer consent to use email addresses for marketing, consents must be documented on a regular basis to be considered valid.