6 para. 1 lit. f) GDPR
43 and consequently may provide a legal basis for the
processing of personal data.
The protection of personal data in the context of electronic communications for
marketing purposes is also specifically addressed in Art. 13 ePD. The requirements
laid down in the directive are mainly implemented by the Telecommunications Act
(“TKG”) and the TMG. Advertising issues are also addressed in the Unfair Competition Act (“UWG”),
44 where in particular cold calling is prohibited and sanctioned
in § 7 UWG. The ePR would, in case of its adoption, introduce new rules concerning
direct marketing.
45 The Federal Court of Justice (“BGH”) dealt with the protection
of personal data in the context of advertising. The Court held that the unsolicited
forwarding of advertisement by e-mail and of electronic newsletters is inadmissible
under the rules of unfair competition.
46
2.1.4 Particular Protective Mechanisms for Electronic Marketing
Communications
The GDPR generally establishes an opt-in system to the extent that personal data
may only be processed if the consent of the data subject has been obtained, Art.
6 para. 1 lit. a) GDPR. If, however, the requirements, as set out in Art. 6 para. 1 lit. f)
GDPR, are met, there is an opt-out system, because processing in accordance with
these requirements is allowed. How far one could analyze this situation in terms of a
mixed system depends on the interpretation and concretization of the general clause
of the legitimate interests pursued by the controller within Art. 6 para. 1 lit. f) GDPR.
Particularly for marketing purposes, § 7 of the German UWG prohibits certain
practices typically based on personal data as far as not legitimized by previous
consent of the data subject. This prohibition transposes rules from the ePD.
Following these lines, the ePR will (probably) state that electronic communications services may be used for the purposes of sending direct marketing communications to end-users who are natural persons if those persons have given their
consent, Art. 16 para. 1 ePR. This constitutes principally an opt-in system. However,
member states can provide for an opt-out system concerning direct voice-to-voice
calls, Art. 16 para. 4 ePR.
In case of an existing customer relationship, the obtained contact details may be
used for direct marketing of similar products or services. Nonetheless, the customer
shall clearly and distinctly be given the right of objection at any time, Art. 16 para.
43 See the section “The Role of Previous Consent of the Data Subject” for the wording of Art. 6 para.
1 lit. f) GDPR.
44 It is disputed in literature if the requirements of the Cockie directive are implemented in its
entirety, see Auer-Reinsdorff and Conrad (2016), § 36, paras. 9 et seq.
45 See Sect. 2.1.1.
46 BGH, judgment of 20 May 2009, I ZR 218/07 ¼ NJW 2009, 2958; BGH, judgment of 11 May
2004, I ZR 81/01 ¼ GRUR 2004, 517.
192
C. Breunig and M. Schmidt-Kessel
43 and consequently may provide a legal basis for the
processing of personal data.
The protection of personal data in the context of electronic communications for
marketing purposes is also specifically addressed in Art. 13 ePD. The requirements
laid down in the directive are mainly implemented by the Telecommunications Act
(“TKG”) and the TMG. Advertising issues are also addressed in the Unfair Competition Act (“UWG”),
44 where in particular cold calling is prohibited and sanctioned
in § 7 UWG. The ePR would, in case of its adoption, introduce new rules concerning
direct marketing.
45 The Federal Court of Justice (“BGH”) dealt with the protection
of personal data in the context of advertising. The Court held that the unsolicited
forwarding of advertisement by e-mail and of electronic newsletters is inadmissible
under the rules of unfair competition.
46
2.1.4 Particular Protective Mechanisms for Electronic Marketing
Communications
The GDPR generally establishes an opt-in system to the extent that personal data
may only be processed if the consent of the data subject has been obtained, Art.
6 para. 1 lit. a) GDPR. If, however, the requirements, as set out in Art. 6 para. 1 lit. f)
GDPR, are met, there is an opt-out system, because processing in accordance with
these requirements is allowed. How far one could analyze this situation in terms of a
mixed system depends on the interpretation and concretization of the general clause
of the legitimate interests pursued by the controller within Art. 6 para. 1 lit. f) GDPR.
Particularly for marketing purposes, § 7 of the German UWG prohibits certain
practices typically based on personal data as far as not legitimized by previous
consent of the data subject. This prohibition transposes rules from the ePD.
Following these lines, the ePR will (probably) state that electronic communications services may be used for the purposes of sending direct marketing communications to end-users who are natural persons if those persons have given their
consent, Art. 16 para. 1 ePR. This constitutes principally an opt-in system. However,
member states can provide for an opt-out system concerning direct voice-to-voice
calls, Art. 16 para. 4 ePR.
In case of an existing customer relationship, the obtained contact details may be
used for direct marketing of similar products or services. Nonetheless, the customer
shall clearly and distinctly be given the right of objection at any time, Art. 16 para.
43 See the section “The Role of Previous Consent of the Data Subject” for the wording of Art. 6 para.
1 lit. f) GDPR.
44 It is disputed in literature if the requirements of the Cockie directive are implemented in its
entirety, see Auer-Reinsdorff and Conrad (2016), § 36, paras. 9 et seq.
45 See Sect. 2.1.1.
46 BGH, judgment of 20 May 2009, I ZR 218/07 ¼ NJW 2009, 2958; BGH, judgment of 11 May
2004, I ZR 81/01 ¼ GRUR 2004, 517.
192
C. Breunig and M. Schmidt-Kessel