How to fight off unauthorized advertising

Many people are daily victims of unwanted advertising. Painters are annoyed with faxes that are constantly wasting their paper and toner, adolescents are drowning in e-mail spam or being smeared by text messages, housewives are learning to hate call centers who promise them profits or sell products.
Many of these people do not know that they are not defenseless here, and how they can defend themselves. Often they believe that only state agencies, consumer associations or rival companies could do something. This is wrong, however, as explained below.

Legal possibilities against advertising

Since the internet and e-mail have become established, advertising has also discovered this area. More and more advertising is sent by e-mail, both individually and in bulk. Unfortunately, most are unwanted messages. First, it should be noted that German advertising law also applies to foreign senders, even if they have their headquarters outside the EU. But you should not try to take legal action against these foreign senders - it is useless, for a German court ruling that could be obtained against foreign senders would hardly be enforceable outside of Europe. Incidentally, even the execution within the EU is a true tragedy. According to settled case-law, unsolicited advertising by e-mail, fax, text message or telemarketer is not permitted either towards individuals or businesses, even and especially if it serves to establish a first-time business contact. In the opinion of the German high court this already applies to the first dispatch.
The recipient can claim for injunctive relief under §§ 1004, 823 Abs. 1 BGB (German civil code) against the sender. A competition violation under § 1 UWG (German law against unfair competition) does not need to be given at the same time, if sender and receiver are active in completely different industries, so that any competition is missing, but of course a competitor can claim if he is informed about this misconduct by any recipient. A property violation or disruption of business operations can be fought off according to § 823 Abs. 1 BGB by entrepreneurs. For private individuals the same claim follows from their general right of privacy.
A tacit agreement cannot be assumed in principle, especially if there are no special, originating from the sphere of the addressee, circumstances that make it desirable for the addressee, to receive the advertising just by E -Mail instead of a normal letter. Businesses may be subject to such special circumstances if the advertiser is reasonably suspecting that his offer is of interest to the company. The district court of Heidelberg has decided by judgment of 10.07.2008 (file 3 O 142/08) that a presumed consent of an entrepreneur in telephone advertising is only present when the caller can assume that the recipient expects such a call or at least is open-minded. It is not sufficient that the caller may assume a current or concrete need for the goods or services offered, rather, it must be added that the person called will presumably also agree with the chosen contact method, here telephone advertising. Even in the case of goods or services of which the trader trades or which he requires on an ongoing basis, it is true that the trader's interest in the offer of new entrants to the market is usually also apparent; however, it also matters whether the matter is in such a hurry that it requires a phone call. With a verdict announced on 16.07.2008 (VIII ZR 348/06), the BGH has clarified that consent to the receipt of advertising via e-mail or text messages are only effective if they are issued either individually or on form actively ticked.
Advertisement by newsletter or other variants is also forbidden as long as the recipient has not given his consent. Agreements in terms and conditions are ineffective according to prevailing case law.
The sender bears the burden of proof for the existence of an agreement. The fact that a user has voluntarily registered his e-mail address in a register accessible to everyone, does not in any case lead to the supposition that he agrees to the receiving of e-mail advertising. Furthermore, according to the GDPR, a claim for information of the data subject exists; the sender must disclose where he got the e-mail address from and to whom he passed it. The affected access provider can react technically and legally. It should be noted, however, that while it is usually not responsible for competition violations via internet, it is obliged to block the use of technical facilities. Even political parties or non-profit organisations must adhere to the above principles - even if no commercial intentions are pursued. If you want to fight back, just bring the e-mail print including the header to the lawyer of your trust.
When it comes to fighting cold calls, it is a bit more complicated because there is no proof of the call. Make a note of the date and time of the call, as well as any information the caller discloses. Deceive interest, but regret that you have no time and therefore ask for a fax or a letter, in short: Try to get the caller to send information. This will determine who called you and why.
Your lawyer will then contact the disturber and ask them to refrain. The costs must be borne by the disturber. A pre-formulated, punitive cease and desist letter is attached on a regular basis and has to be signed. When the punishment-cease and desist letter is signed, an effective contract between warnings and warnings is made, from which the warned can no longer come out so easily. Thus the recipient can get a contractual penalty if the violation is repeated. According to Art. 82 GDPR the recipient can also claim compensation for immaterial damage. If the sender is not willing to sign the letter, it can be sued at court.