Cold calling is an issue that is of great importance to both consumers and businesses. In Germany, there are strict regulations that stipulate when and under what circumstances a company may contact potential customers by telephone. The Telephone advertising to consumers is only permitted with their express consent. Presumed consent may be sufficient for companiesHowever, this must relate to both advertising and the "telephone" communication channel.

The following sections explain the legal basis and use a recent court ruling to illustrate the legal situation regarding cold calling. Particularly with regard to the General Data Protection Regulation (GDPR) and the Act against Unfair Competition (UWG) there are important aspects to consider.

By the way: affected consumers and entrepreneurs can defend themselves. Contacting consumers by telephone almost always constitutes an infringement of general personal rights. In the case of entrepreneurs, it is usually a violation of the right to set up and operate a business.

Important findings

• Duty of consent: Telephone advertising to consumers is only ever permitted with their consent.
• Business contacts: In the case of companies, presumed consent may be sufficient, but this must include the advertising itself and the "telephone" communication channel.
• GDPR and UWG: Art. 6 para. 1 lit. f GDPR is not a sufficient legal basis for telephone advertising without consent.
• Jurisdiction: When assessing telephone advertising, courts continue to primarily take into account the competition law provisions of Section 7 UWG.

What had happened?

The Saarland OVG has made a landmark decisionThe plaintiff, a company, stored data records of companies from publicly accessible directories in order to contact them later by telephone. Dental practices in particular were asked whether they sold precious metals. Even before the GDPR came into force, a prohibition notice was issued, which the plaintiff wanted to have revoked due to the new legal situation.

How did the court rule?

The court continued to prohibit advertising and clarified that the legal situation has not changed as a result of the introduction of the GDPR.

1. art. 6 para. 1 lit. f GDPR is not a legal basis for cold calling

The Higher Administrative Court of Saarland denied the claim and dismissed the appeal. It clarified that Art. 6 para. 1 lit. f GDPR does not constitute a legal basis for telephone advertising, as Directive 2002/58/EU permits national provisions that prohibit telephone advertising without consent.

2. no distinction between direct and demand advertising

The court stated that the term "advertising" is not differentiated in the UWG and the GDPR. Therefore, telephone advertising includes all calls to promote the sale of goods or services.

3. assessment standards of § 7 para. 2 no. 1 UWG

Advertising calls to consumers are only permitted with express consent. In the case of entrepreneurs, presumed consent is sufficient. It must be demonstrated that the entrepreneur had a concrete - not merely abstract - interest in the goods and services and also presumably agrees to being offered the product by telephone. The provision of a telephone number in public directories does not constitute presumed consent.

4. the judgment is not final

The judgment is not final; An appeal is pending at the Federal Administrative Court (BVerwG). It will be heard orally on December 18, 2024. We are determined: the case is clear-cut and cannot be won by the telephone advertisers.

Conclusion

The legal situation regarding cold calling is clear: calls to consumers are not permitted without consent. Businesses can be called if there is presumed consent, which also includes the "telephone" communication channel. Companies should always adhere to these regulations in order to avoid legal consequences. Ultimately, this means that cold calling by telephone is almost always illegal in practice.

Are you affected by telephone advertising? We will be happy to enforce injunctive relief for you against annoying callers.

FAQs

Is cold calling to consumers permitted?

Cold calling consumers is only permitted with their express consent.

When is telephone advertising to companies permitted?

Telephone advertising to companies is permitted if consent or presumed consent has been given, which also relates to the "telephone" communication channel.

Can the GDPR be used as a legal basis for telephone advertising without consent?

No, Art. 6 para. 1 lit. f GDPR is not a sufficient legal basis for telephone advertising without consent.

What is presumed consent?

Presumed consent means that the caller may assume that the called party agrees to the advertising call. It is therefore necessary that, based on specific factual circumstances, it can be assumed that the person being called has a material interest in the telephone advertising. This interest must extend not only to the product, but also to the communication channel "telephone".