Consent in outbound: what German competition law means for campaigns

Outbound is not a channel like any other in Germany. If you actively call or message customers to advertise, you will in most cases need their prior consent. The governing law is the Act against Unfair Competition, the UWG.

This post sets out the most important rules and shows what they mean for building a campaign. It is not legal advice. For your specific case, please speak to your legal team or your data protection officer.

#The principle: no unreasonable nuisance

Section 7(1) UWG prohibits commercial practices that place an unreasonable burden on market participants. This applies in particular to advertising the recipient evidently does not want.

Subsection 2 becomes specific. Telephone advertising to consumers without their prior express consent is always an unreasonable nuisance. Towards businesses, at least presumed consent is required.

For automated calling machines, fax and electronic mail the law requires prior express consent, whether you address consumers or businesses. In practice, SMS and messenger messages are treated like electronic mail.

#What this means per channel

The overview below summarises the rules for advertising. It is a guide, not a complete legal assessment.

#The existing-customer exemption

For email advertising, Section 7(3) UWG provides an exemption. It applies only if all four conditions are met:

• You obtained the address in connection with a sale.
• You advertise your own, similar goods or services.
• The customer has not objected.
• At collection and at every use, the customer is clearly told they can object at any time, at no cost beyond basic transmission charges.

If any condition is missing, the principle applies again: no advertising email without express consent.

#What robust consent looks like

Consent only holds if it is specific. A pre-ticked box or a sentence in the small print is not enough. It is robust when it is clear:

• who may advertise, meaning your company and any explicitly named third parties,
• for what, meaning which products or topics,
• through which channel, separately for phone, email and SMS,
• when and how it was given, with the exact wording.

Store the wording with a version. If the text of your form changes, you must later be able to show which text applied to which consent.

#Proof: what Section 7a UWG requires

Since Section 7a UWG came into force, anyone advertising to consumers by phone must document their consent appropriately at the time it is given.

The record must be kept for five years from the time consent is given and after every use, and handed to the competent authority without delay on request. For telephone advertising, that authority is the Federal Network Agency under Section 20 UWG.

#Advertising or service?

Not every outgoing contact is advertising. An appointment confirmation, a delivery status or a note about a missing document informs about an existing relationship. Messages like these generally fall outside the advertising rules.

The line is thin, though. As soon as a service message carries a promotional add-on, such as an offer at the end, it can become advertising.

And regardless of the UWG, the GDPR applies to every message: you need a legal basis for processing the contact data.

#What a campaign needs technically

Law is only kept in operation when it is built into the workflows. A campaign that takes Section 7 UWG seriously needs four building blocks.

1. Consent per channel. The contact list knows each person's consent status per channel, with date, source and wording.
2. A check before every contact. Right before a call or send, the system checks whether consent is still valid. A withdrawal takes effect immediately.
3. Suppression lists. Anyone who objects goes on a suppression list that applies to all campaigns and channels, not just the current one.
4. Call windows. The UWG sets no times of day. Call windows are still part of considerate outbound and can be set per campaign.

Univerx Outbound brings these building blocks together: contact lists, time windows, suppression rules and consent checks, designed with Section 7 UWG in mind. Campaigns and notifications draw on the same lists.

#Before the first campaign starts

The guide Outbound with consent in Germany covers the full path from consent to reporting. The glossary explains the term under Consent (German competition law).