When asking for “customer satisfaction” feedback turns into illegal advertising – nasty traps that online print providers can get caught in.

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Anybody operating an online store has to brace themselves almost weekly for new regulations issued by the courts and the legislature. One recent sensitive issue is the subject of customer surveys sent by e-mail. Yet help is at hand from Dr. Martin Schirmbacher.

It is standard practice, not only in the online print industry, to survey your customers by e-mail about how satisfied they are with the services your business has provided and to request feedback. Furthermore it presents a really good opportunity to improve your service with the aid of the feedback and to stay in touch with customers or even make them aware of new offerings. The Higher Regional Court (OLG) in Dresden has now delivered a judgement of serious consequence in respect of e-mail advertising. That was reason enough for me to seek some over-the-phone advice from Dr. Martin Schirmbacher from “Kanzlei HÄRTING Rechtsanwälte”, Initiative Online Print’s attorney.

And as it turns out, you need to watch out. “This current judgement by the OLG Dresden dated April 24, 2016 (Az. 14 U 1773/13) judges the retrospective surveying of customers by e-mail to be illegal and therefore basically classes it as prohibited e-mail advertising. This judgement is not the first of its kind, and you have to assume that other courts will follow this adjudication,” is how Dr. Schirmbacher summarizes the situation. But does this judgement actually mean the irrevocable demise of customer surveys and what are the actual consequences for the online print industry? Legal appraisal of customer satisfaction surveys by e-mail, as to whether or under what circumstances it is legitimate, has been inconsistent and ambiguous in the past. Back in 2012 a judgement by the Regional Court in Coburg gave companies, which wanted to send feedback requests to their customers by e-mail, grounds for hope. The Court classified such e-mails not as advertising but rather as a customer service. As a result however, many courts viewed the primary purpose of these surveys as being to promote sales and customer retention and therefore contradicted the judges in Coburg. The broad definition of advertising is unfortunately of no help to business owners and consequently anything that promotes sales and demand in whatever form is deemed to be advertising.

The OLG Dresden has now taken this view as well. The adjudication was based on a typical case that most providers of online print services are familiar with: a franking machine and print solutions dealer e-mailed its B2B customers after they made an online purchase to request feedback. In the e-mail the customer was requested to take part in a customer satisfaction survey and to rate the dealer’s range of services. After participating in the survey, the customer then received another e-mail, in which they were thanked for participating and informed that the dealer in question hoped to continue looking after the recipient, treating them as a valued customer. The recipient of the message, evidently a competitor, successfully took legal action against the dealer.

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“It is standard practice, in the online print industry too, to survey your customers by e-mail about how satisfied they are with the services your business has provided, yet that could in future be coupled with the need to obtain the customer’s consent, to avoid falling  foul of the law” – Bernd Zipper

Dr. Schirmbacher explained the decision of the Court to me briefly as follows: irrespective of whether business owners conduct these customer surveys themselves or commission others to do so, the Court unequivocally states that both the “offending” customer satisfaction survey and the note of thanks for participating should be classified as advertising. At the very least its purpose is that of customer retention and the initiation of future business transactions. The purpose of such “follow-up customer care”, which objectively speaking is “outside the duty of performance owed”, is to pave the way for future business transactions and therefore to promote such transactions. In the opinion of the Court, the company should have obtained the prior consent of the recipient. The Court did not accept the objection that the e-mails were sent in conjunction with a signed contract. Even the widespread prevalence of such feedback requests and the fact that the customer had already voluntarily disclosed their e-mail address evidently did not satisfy the judges, even though they did not deal with these arguments in more detail when giving the reasons for their judgement.

Irrespective if you commission others to do so, the Court unequivocally states that the “offending” customer satisfaction survey and the note of thanks for participating should be classified as advertising. Source: screenshot www.feedbackstr.com/de
Irrespective if you commission others to do so, the Court unequivocally states that the “offending” customer satisfaction survey and the note of thanks for participating should be classified as advertising. Source: screenshot www.feedbackstr.com/de

What are the resulting consequences for online print providers?

Dr. Schirmbacher provided me with four options (of differing degrees of reliability) that should enable online print providers to send post-sale feedback requests in the future:

  1.  If you want to keep on the right side of the law, you must obtain your customer’s explicit consent prior to sending out a feedback request. Particular care should be taken to formulate an unambiguous and comprehensive opt-in text and to document that consent verifiably. Obtaining explicit consent is the most reliable but possibly not the only option available to enable online print providers to continue to send feedback requests.
  2. By implication the judgement allows you to infer that feedback requests can then (only) be made without obtaining prior explicit consent, if these requests are part of the “the duty of performance owed”. So it is conceivable that obtaining the customer’s opinion could be made into an obligation that the business owner has to meet. This can, for example, be included in the General Terms of Business, in which the business owner commits to enquire about the customer’s level of satisfaction with the former’s performance. An appropriate clause should however at least be clearly identifiable and not get buried at some concealed position in the continuous GTB text.
  3. Evidently the Court was also of the opinion that feedback requests can also be backed up by § 7 Section 3 of the German Unfair Competition Act (UWG). This regulation permits advertising to be sent by e-mail following a purchase, if the seller has made the buyer aware of their right to opt out when soliciting the buyer’s e-mail address. However the seller’s advertising opportunity in this case is limited to promoting similar proprietary products. You could definitely argue that a buying experience survey related to an actual product should also be regarded as advertising for such a product.
  4. One issue that has not yet been legally clarified is whether a feedback request may be integrated into an invoice dispatch or shipping confirmation e-mail. Germany’s Federal Supreme Court (BGH) has at any rate held additional advertising in autoresponder e-mails to be illegal, if the customer has opted out of receiving the advertising. The BGH has not yet decided whether adding a feedback request to a (legitimate) transaction e-mail should be regarded as advertising (requiring consent). At any rate care should be taken to ensure that the main focus of the e-mail is on sending the invoice, shipping confirmation or similar. If the request to participate in a customer survey features too prominently, we are back in the realms of illegal advertising. Furthermore customers must be given the option of opting out of receiving feedback requests by e-mail in future.

My take: However there is the risk that the Dresden judgement will catch on and that other courts will classify feedback requests as advertising that requires the intended recipient’s prior consent. Nevertheless there are definitely methods of sending short customer satisfaction surveys post-purchase to those customers, who have not expressly opted in to receiving advertising by e-mail.

Founder and CEO of zipcon consulting GmbH, one of the leading consulting companies for the print and media industry in Central Europe. The technology and strategy consultant and his team actively support practical implementation in a wide variety of customer projects. His work involves developing visions, concepts and strategies for the players active in the print production process across a wide range of industries. His areas of expertise include online print, mass customization, strategy and technological assessment for print, and the development of new strategies in the print and media environment. Bernd Zipper is the creator and chairman of Initiative Online Print e.V. and, in addition to his consulting activities, is an author, lecturer and sought-after speaker, orator and moderator. His visionary lectures are regarded worldwide as trend-setting management recommendations for the print and media industry. (Profiles also in Xing, LinkedIn).

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