Skip to content
SpamtacularWhere spam and policy collide
  • Home
  • About Mickey
  • Comment Policy
  • Privacy Policy

“Forward to a Friend” and Germany

27 November 2013

Lots of folks have been talking recently about a September BGH decision holding that “emails sent using a ‘send to a friend’ function are to be considered spam, unless the recipient had given prior express consent” ​Federal Court of Justice, Email Recommendation (2013).​​*​

This is a fairly significant development in law. As a general rule, people advise that using a “Forward to a friend” function is okay as long as certain requirements are met. For example, back in 2012, I stated on the ExactTarget blog that: “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” Mickey Chandler, ​A Tiny Picture Worth A Few Grand​, ExactTarget Blog (2012), http://www.exacttarget.com/blog/a-tiny-picture-worth-a-few-grand/ (last visited Nov 27, 2013). 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. As Johannes Baumann told DataGuidance: “Tell-a-friend website functionalities have been a sort of legal ‘grey area’ since 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).

Read moreThe Spock Trap

So, what does this mean from a practical standpoint? Ultimately, marketers are bound to follow prevailing law. In fact, that is generally written into the contracts that you will have with your email or Internet service provider. If you want to operate under the safest possible conditions, you should make certain that you’re following the most stringent legal standard possible. For “Forward to a Friend” email, this is undoubtedly going to be German law. 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 in order to send mail to German recipients.


  1. ​*​
    Google translate version at: https://translate.googleusercontent.com/translate_c?depth=1&hl=en&prev=search&pto=aue&rurl=translate.google.com&sl=de&sp=nmt4&u=http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py%3FGericht%3Dbgh%26Art%3Den%26sid%3D4ae487f899880fe7aba916557ff9e3ff%26nr%3D65732%26pos%3D0%26anz%3D1&usg=ALkJrhi-1BLFLs_To1Q8x-5j8dhh-9SVug

Share this:

  • Facebook
  • Twitter
  • LinkedIn
  • Pocket
  • Email
Tags: CAN-SPAM Act, Forward to a Friend, Germany, Social Forwarding

Calendar

November 2013
S M T W T F S
 12
3456789
10111213141516
17181920212223
24252627282930
« Sep   Dec »

Archives

  • November 2021
  • July 2020
  • June 2020
  • March 2020
  • February 2020
  • January 2020
  • November 2018
  • February 2018
  • January 2018
  • December 2017
  • January 2017
  • August 2016
  • June 2016
  • April 2016
  • March 2016
  • February 2016
  • July 2015
  • June 2015
  • March 2015
  • February 2015
  • November 2014
  • June 2014
  • April 2014
  • February 2014
  • December 2013
  • November 2013
  • September 2013
  • May 2013
  • June 2012
  • April 2012
  • September 2011
  • August 2011
  • March 2011
  • January 2011
  • November 2010
  • July 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • December 2009
  • November 2009
  • October 2009
  • July 2009
  • June 2009
  • May 2009
  • March 2009
  • January 2009
  • October 2008
  • September 2008
  • April 2008

Categories

  • Administrivia
  • Industry
  • Law
  • Policy
  • Spam
  • Uncategorized

Copyright Spamtacular 2023 | Theme by ThemeinProgress | Proudly powered by WordPress