Germany’s Federal Supreme Court (BGH): new adjudication against upselling in response mails also affects online print providers


Many online stores are set to experience hassle in the future if they include upsell advertising in their transaction mails. A recent adjudication by Germany’s Federal Supreme Court has challenged this practice and found in favor of the plaintiff.

unsolicited advertising can be expensive –especially in transaction mails
unsolicited advertising can be expensive –especially in transaction mails

Nearly every online print provider uses their order and shipping acknowledgements to customers to upsell, because this rapidly turns a legally acceptable e-mail into an advertising medium and can motivate customers to purchase another product or service. This was previously permitted by law, even if the customer had objected to this advertising. The Federal Supreme Court has now made this practice considerably more difficult. The BGH recently ruled that it is in any event unlawful to add advertising to an out-of-office message, if the recipient has stated that they do not wish to receive any advertising (BGH, Adj. dd.12. 15.2015, File No. VI ZR 134/15).

The subject of the adjudication was a standard e-mail acknowledgement of receipt. At the end of the message there were a couple of lines, which referred to some of the company’s other free products. The recipient of this automatically generated message sent an e-mail to the same address complaining about the advertising contained in the autoreply message – and again received an acknowledgement of receipt featuring identical advertising. The recipient then sued the sender and the BGH found in the plaintiff’s favor. It’s hard luck that this adjudication now closes – let’s call it a grey area rather than a loophole – in the law. The addition of advertising makes the entire e-mail a form of advertising that requires the recipient’s prior consent. Yet the BGH has not categorically stated whether the first mail was unlawful or not. But if the customer objects to receiving advertising, then no messages with any advertising content may now be sent to them. Logically speaking, this not only applies to autoresponder messages but ultimately to any transaction e-mail.



“Advertising in transaction mails may not be popular, but it was an effective means of upselling. That has now become significantly riskier” – Bernd Zipper

Anybody who wants to obtain more detailed information about this topic can do so online.

Martin Schirmbacher will be talking about the consequences and possible workarounds in a free webinar at 10am on Friday 2/12. Registration is required. This online seminar is aimed primarily at marketing executives and CEOs of online stores and eCommerce providers.

My take: divided. On the one hand I don’t have to put up with advertising on my online-generated boarding card for my next flight any more – but a great upselling opportunity is lost. Pity, because if you think about it, this is going to prohibit recommendation marketing activities in the future. We’re all on tenterhooks.


Leave A Comment