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Focus on cold calling: Legal issues relating to commercial communication

Note: This article has been machine translated and may therefore contain translation errors.

A contribution from

Alexander Brittner, LL.M.

Salary Partner, Attorney at Law

Topics and keywords

Our last newsletter ended with a warning against cold calling via WhatsApp. In the following, we will now deal in detail with legal issues relating to commercial communication – in particular for cold calling – to explain the opportunities, risks and solutions for acquiring new customers and communicating with existing customers.

Initial situation

One of the most important topics in companies is not only the care of existing customers, but also the generation of new customers. Various means are used here, such as passive sales (e.g. websites or search engine positioning) or active sales through direct contact. In the latter case, for example, letter post, e-mail or the classic advertising call are used.

For active sales, a wide range of regulations under the Act against Unfair Competition (UWG) and the General Data Protection Regulation (GDPR) must be observed.

Differentiation: Addressees

The distinction between a B2C (business-to-consumer) or B2B (business-to-business) approach is decisive here. While there are many legal prohibitions in the B2C sector, it is easier to initiate sales measures in the B2B sector.

The topic of data protection is relevant for both areas. Already relevant in the B2C sector, any contact with an individualized contact person in the B2B sector also falls within the scope of the GDPR. Only the very abstract address “Dear Sir or Madam” to the company headquarters would not be relevant under data protection law.

Even the German Telemedia Act (TMG) is involved: In the case of electronic communication (e.g. by e-mail), it must be clearly recognizable who is behind the advertising and that there is a commercial intention.

Permitted measures vis-à-vis consumers (B2C)

Consumers may only be contacted for advertising purposes to a very limited extent, regardless of whether they are new or existing customers. Express, active consent could be used to justify any communication channel, but this is very difficult to obtain and can always be revoked anyway.

Otherwise, advertising contact is not permitted by telephone, fax or e-mail. Exception: e-mail advertising to existing customers for similar goods or services with prior reference to the use of the address for this purpose. An option to object must always be integrated.

However, contact by letter post is possible as long as the addressee does not object – but not as interesting as e-mail advertising due to the costs.

Permitted measures vis-à-vis business customers (B2B)

Unlike in the B2C sector, advertising to business customers is also permitted by telephone under strict conditions. For example, no express consent is required for contact by telephone if a presumed interest in the services of the advertiser can be objectively assumed. This is the case if there is a material reference to the industry or business purpose of the called party. However, a theoretical general interest is not sufficient.

In the B2B sector, advertising by post and e-mail to existing customers is also possible in the same exceptional cases as in the B2C sector.

Incidentally, other electronic contact processes such as short messages or contact via platforms also fall under the otherwise existing ban.

Requirements from data protection law

After consent or, in the case of existing customers, a legitimate interest in favor of the controller in accordance with Art. 6 GDPR, data protection regulations must also be taken into account.

Affected parties are for example acc. the Artt. 12 ff. GDPR about data processing. A type of data protection declaration must therefore be sent. Technical and organizational measures such as deletion concepts must also be planned. Last but not least, processing directories must also be drawn up to map the advertising measures.

Consequences

It is possible to comply with the legal requirements for commercial communication, but it is important to have a legally sound concept.

In the event of violations of legal requirements, there is the threat of costly cease-and-desist orders from those affected with claims for damages as well as warnings from competitors or associations pursuing competition law violations. Fines may also be imposed by the regulatory authorities.

In the event of a confrontation, it then becomes clear whether the advertising measure has brought more added value than damage. The legally correct and legally planned approach is probably the better alternative in any case.

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