The Unfair Competition Act (UWG) has been extended by an interesting and relevant provision with Section 7a UWG since October 1, 2021.
What’s new?
As in the past, entrepreneurs require the express consent of the consumer before any telephone advertising. According to the new Section 7a UWG, this consent must now be documented and stored in a specific manner. No telephone advertising may be carried out without appropriately documented and stored consent.
Important
This standard also applies to old consents that were granted before October 1. If these consents are also to be used after this date, documentation and storage must be made up for.
§ Section 7a (2) sentence 1 UWG also expressly stipulates that any proof of consent to telephone advertising must be kept for five years in future. In principle, the period starts as soon as consent has been given. However, it starts again after each successful advertisement. Whether advertising attempts will also trigger the restart of the period is still unclear. However, initial indications from the Federal Network Agency (BNetzA) suggest that advertising attempts are not covered by the standard.
Violations of Section 7a (1) UWG can be really expensive in the future. § Section 20 (2) UWG allows the BNetzA to impose fines of up to €50,000.00 for violations. An infringement already exists if the consent
- not,
- not correct,
- not complete or
- is not documented in good time or
- is not stored for at least five years.
Just one of these violations is enough to trigger a fine.
The standard is also closely linked to Section 7 UWG, according to which consent must be obtained. Previously, it was possible to defend oneself against a fine for lack of consent by referring to deletion obligations under data protection law. In these cases, proper consent could no longer be proven. This was to the detriment of the authority, which could then no longer impose a fine.
This is now a thing of the past. If Section 7a UWG is violated, it is also a violation of Section 7 UWG. However, the objection that the data had to be deleted for data protection reasons no longer applies because Section 7a UWG contains an explicit retention obligation. This is also compatible with the GDPR, as this standard creates a further legal basis within the meaning of Art. 6 para. 1 lit. c GDPR. As a result, the data subject no longer has a right to erasure of this data under data protection law.
What must or can you do now?
- Old consents must be checked to see whether they meet the new requirements.
- New consents must be documented and stored accordingly.
- Consents obtained from address traders must be systematically checked and the documentation must be requested for retention.
- All requirements for the documentation and storage of consents also apply to their revocation!
How should the consents be stored?
The law says “in an appropriate form”. The legislator has left it to the BNetzA to decide what this means.
Last week, the BNetzA presented draft guidance on how “in an appropriate form” is to be interpreted (here). At the same time, it has called on all stakeholders to take part in the discussion and contribute their ideas, experience and knowledge. According to the BNetzA, interested parties are in particular companies that commission, broker or carry out telephone advertising or obtain the necessary data for this purpose, as well as persons or companies that receive telephone advertising and their respective interest groups and associations.
Comments can be submitted on the notices (which here can be found here) can be submitted by
November 30, 2021
be submitted.
Would you like to have your old consents or the collection of new consents checked for legal compliance or do you have any questions about the declaration of consent and the change in the law? Or do you want to submit a statement on the BNetzA’s instructions and need professional support? Feel free to contact us. We will be happy to advise you!
The author and your usual contacts will be happy to answer any questions you may have!
Patrick J. Kaatz
kaatz@tigges.legal
+49 211 8687 165