Client Successfully Sues Travel Portal for Unwanted Advertising
Nowhere is price comparison easier than on the Internet. Everyone clicks through offers from a wide variety of companies until they eventually decide to buy from the cheapest provider. In the process, they leave a trail – after all, it’s not uncommon to have to provide your email address and other information to get a final price quote. However, that doesn’t mean you want to buy, will buy, or want to be solicited to buy.
In her search for a cheap flight online, the client navigated from airline to travel provider to comparison portal. Shortly thereafter, she received an email from one of the sites she had visited urging her to book the quote she had requested while the price remained so low. However, the client had not consented to receiving a “reminder email” and felt harassed by this purported service.
No consent from the customer = advertising by the company
Lawyer Daniel’s client is in the right. This is because, in this case, the “reminder email” constitutes a form of unauthorized and harassing email advertising if the consumer has not previously given specific consent. Consequently, when a consumer abandons a purchase, they are usually making a conscious decision not to place an order and therefore do not need a “reminder.” If the prospective customer still wishes to complete the order, they could simply go through the ordering process again. Furthermore, such a “reminder email” does not fall under the category of permitted email advertising as defined by the special provision of Section 7(3) of the German Unfair Competition Act (UWG), because for that to be the case, the client’s email address would have had to have been obtained by the company through a completed purchase. This is precisely not the case with the “booking prompt email” or “abandoned cart email.”
The defendant company contested the allegation that the “reminder service” constituted advertising, arguing that booking interruptions often occur accidentally – for example, due to an unstable internet connection or because the user unexpectedly stepped away from the computer. Potential customers would then be unsure whether the booking process had already been completed or if they would have to re-enter all the information. The reminder email is therefore essentially a notification regarding the status of the booking and an opportunity to continue it easily. The service is thus in the (relevant?) interest of the plaintiff.
However, this claim can be refuted by the competitive situation among online providers: the “abandoned cart email” was developed precisely because consumers research service prices from different providers on their own – so that companies could secure a competitive advantage over rivals by breaking the law. Its primary purpose is therefore to recapture a “lost” customer, since it is sent only to those who have not made a booking.
Claim for injunctive relief and preliminary injunction granted
Legally decisive in this case, however, is the unreasonable intrusion into the client’s privacy. Privacy is of great importance for an individual’s way of life, and every person has the right to keep this sphere free from unwanted intrusion by advertising. This right takes precedence over a company’s right to advertise its products.
Furthermore, even if one were to accept the alleged argument that this did not constitute advertising, the required consent to receive the email is lacking. This is because the abandoned purchase transaction neither establishes nor gives rise to a business relationship that would justify the use of the data. Thus, a generally unlawful act under the law (violation of the general right of personality) has occurred.
Consequently, the Berlin Regional Court ordered the defendant company to cease sending emails without the required consent – specifically to the client.
Do you also receive such harassing emails and want to take action against them?
Attorney Daniel will provide you with comprehensive advice and enforce your rights, first through pre-litigation measures and – if necessary – in court.