The First Chamber of the German Federal Supreme Court decided on the permissibility of outbound advertising calls on the basis of a so-called “double-opt-in” (judgement dated February 10, 2011 – I ZR 164/09 – Telefonaktion II). The full reasoning of the decision has not been published yet. But the press release already gives important clues as to the Court’s considerations.
A local healthcare insurance company had called consumers whose telephone numbers had been collected in the course of a lottery. An “opt-in” for the advertising calls had been obtained, i.e. the participants in the lottery had checked the consent box on the lottery form. In addition, all the consumers received an email asking them to confirm their consent by clicking on a link provided in the email. This procedure, which is called “double-opt-in”, is meant to guarantee that the consent originates from the sender.
The Federal Supreme Court criticizes that no convincing proof was presented that the double-opt-in had really been performed. The Court would have preferred to have been presented with the print-outs of the emails of persons declaring their consent. The Federal Supreme Court is, however, mistaken in assuming that such emails exist: where typical double-opt-in is practised, confirmations are given by clicking on a link and not by sending an email.
Against the background of this decision, new ways other than having to present an email must be found in order to prove that consent has been declared. One possibility could be to combine suitable log files with testimonial or expert evidence. It will be necessary, however, to analyse the reasons for the decision and find out whether the Federal Supreme Court has left room for any other possibilities to provide proof for double-opt-ins meeting court standards. The issue also arises for any other direct marketing channels that require consent (for example email, SMS or fax), because for any type of consent it is necessary to be able to prove the consent declaration.
The Federal Supreme Court not only criticizes the insufficient proof that was presented for the double-opt-in. The Court also states flatly:
A double-opt-in procedure which is carried out electronically is unsuitable from the start to provide valid proof for a customer consent regarding advertising calls. Where an electronic confirmation exists, it may, of course, be assumed that the application to participate in the online lottery (which also includes the consent regarding canvassing calls) stems, in fact, from the email address given in the application. This does not guarantee, however, that the provided phone number really is the phone line of the person sending the confirmation email. There may be a number of reasons why a wrong phone number is provided by mistake or on purpose. Pursuant to existing law, however, it is mandatory that the individual participant receiving the call is also the one who has declared his consent prior to the advertising call being made.
This statement from the press release gives reason to suspect that it will become even more difficult to obtain consent for advertising calls than before. Without knowing the detailed reasoning of the decision it is impossible to judge which other routes the Federal Supreme Court might leave open. It is conceivable that inbound calls with calling line identification may be used in order to obtain declarations of consent which can be matched with a phone number. How to prove oral consent, however, presents another difficulty. It might be necessary to present the relevant employee of the call centre as witness. Other routes may be to verify phone numbers or a double-opt-in via SMS. In any case, the Federal Supreme Court’s decision leads to a number of further insecurities concerning telephone advertising.