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German Act against Unfair Competition (amended) – E-mail advertising and forum shopping

In an unusually open clash between the Regional Court and the Higher Regional Court of Düsseldorf regarding the interpretation of the exception in Section 14 (2) sentence 3 no. 1 UWG (see the articles dated 25 February 2021 and 24 June 2021), the Higher Regional Court now seems to follow the interpretation of the Regional Court and affirms – at least in this specific case – a teleological reduction to the effect that offences in or by means of e-mail are not covered by the term “telemedium” within the meaning of the aforementioned provision (judgment of 27 January 2022, ref. 20 U 105/21).

Initially, the Regional Court of Düsseldorf had affirmed its local jurisdiction and prohibited the respondents from sending business advertising for the products of an insurance agent/broker to third parties by e-mail without prior express consent if this does not fall under the exception to the “unacceptable nuisance” according to Section 7 (3) UWG. The Regional Court of Düsseldorf did not consider its jurisdiction to be excluded under Section 14(2), sentence 3 no. 1 UWG, as the injunctive relief sought was not connected to anti-competitive conduct in electronic legal communication or telemedia, but to the nuisance caused by the use of the electronic legal communication.

The admissible appeal was rejected by the Higher Regional Court as unfounded. With regard to jurisdiction, the Higher Regional Court pointed to the unclear legal definition of the term “telemedia” in Section 1 of the German Telemedia Act (TMG) and the explanatory memorandum to the Electronic Commerce Unification Act (BT-Drs. 16/3078, 13) that advertising e-mails are to be regarded as telemedia services. Notwithstanding the fact that in the case in dispute no offence had taken place in telemedia but through telemedia, the Upper District Court also expressed doubts as to whether this telemedium was covered at all by the provision of Section 14 (2) no. 3 no. 1 UWG. Unlike online offers, for example, which can be accessed by anyone, anywhere, e-mails are regularly only addressed to a certain group of recipients who have no way of knowing what other recipients they are addressed to, so that potential claimants do not have a range of jurisdictions open to them from the outset. In the opinion of the Upper Regional Court, this at least justifies a teleological reduction to the effect that offences in or by means of e-mail are not covered by the term “telemedium” within the meaning of Section 14 (2), sentence 3 no. 1 UWG.

Conclusion:

The scope of application of Section 14 (2), sentence 3 no. 1 UWG remains controversial. With the present decision, the restrictive reading of Section 14 (2), sentence 3 no. 1 UWG by the Düsseldorf Regional Court had the approval of the Düsseldorf Higher Regional Court, at least in this particular case. In practice, despite the change in the law, this leads to a further case for selecting a jurisdiction that is presumably favourable for the plaintiff (so-called “flying jurisdiction”). It remains to be seen whether other Courts of Appeal will follow this interpretation of the law.

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Authors

Dr Christian Meyer

Principal

Attorney-at-Law

Certified Specialist Lawyer for Intellectual Property