“Forward to a Friend” and Germany

27 November 2013

Many folks have been talking recently about a September BGH decision holding that “emails sent using a ‘send to a friend’ function are considered spam unless the recipient had given prior express consent. ​Federal Court of Justice, Empfehlungs-E-Mail (I-ZR-208/12) (2013).​ (A very unofficial Google Translate version of the decision is available here.)

This is a fairly significant development in law. Generally, people advise that a “Forward to a friend” function is okay if certain requirements are met. For example, in a now-deleted ExactTarget blog post, I stated: “Our advice is to let people control the content of the messages that they are sending and to never offer them anything at all in exchange for sending messages to their friends.” This guidance remains generally true, especially within the context of that post (which was generally discussing the CAN-SPAM Act).

However, this no longer appears to be the case in Germany. Johannes Baumann told DataGuidance: “Tell-a-friend website functionalities have been a sort of legal ‘grey area’ for a couple of years in Germany. However, so far it could be argued that by designing the emails in a certain way, the legal risk could be reduced considerably. After the German Supreme Court ruling, this is no longer possible and companies using such functionalities should remove them from their websites as soon as possible.” Dataguidance.com, ​Germany: “Send to a friend” email function ruled as spam​, Cecile Park Publishing Ltd. (2013), http://dataguidance.com/news.asp?id=214 (last visited Nov 27, 2013).

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So, what does this mean from a practical standpoint? Ultimately, marketers are bound to follow the prevailing law. That is generally written into the contracts you will have with your email or Internet service provider. You should follow the most stringent legal standard to operate under the safest conditions. This will undoubtedly be German law for the “Forward to a Friend” email. I’m not certain how this would apply for a company that doesn’t do any business in Germany (and thus wouldn’t ordinarily be subject to German law) if their form was abused by an unknown third party to send mail to German recipients.

Mickey Chandler
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