Business Law

Prohibition on cold calling applies to charities too

Do you regularly receive cold calls? In a recent decision the Regional Appeal Court of Cologne ruled that the prohibition on cold calling applies to charities too. Read more here!

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Cold calling: a well-known problem

“Good afternoon Mr/Mrs X! You recently completed an internet survey on the topic of Y. I am calling to give you some more information about the topic…”

As one in two people are probably already aware, most cold calls start in a similar fashion to the above sentence. In some cases, cold calls are received after completing an internet questionnaire, leaving a comment or playing an internet game through which details for a market survey are collected.

In a case heard by the Regional Appeal Court of Cologne, a married couple received a marketing call from one of the Sovereign Order of Malta’s charitable partners. The couple had not given their consent to being contacted. The organisation offered the couple emergency home calling services for elderly and disabled people. The couple took the view that the cold calling strategy was a nuisance and, with the help of a consumer protection organisation, brought injunction proceedings against the organisation and a claim for the reimbursement of legal costs.

Cold calling by charities

Rightly, the Regional Appeal Court of Cologne held:

“Even though the defendant’s motives for offering an emergency home calling service for elderly and disabled people were exclusively charitable and religious and not to make a profit, the charitable organisation and any other charitable organisation advertising in this way act as private businesses operating in a competitive manner. The organisation and the prospective purchaser interact on an equal footing. The charitable organisation’s ecclesiastical activities, which include its connection to the Order of Malta, its members and its sub-divisions as an institution and a business, are distinguishable from its activities in relation to competitors on the open market for services. The application of the rules contained in the Unfair Competition Act is established not by reference to the reason for an activity being undertaken, but by reference to the competitive nature of the activity and the position of the charitable organisation in relation to competitors which offer similar charitable services. To acquire customers, the organisation must observe the restrictions under competition law on telephone advertising in the same way that competitors must”.

The Regional Appeal Court of Cologne therefore upheld a lower-court decision dated 29.02.2012, which found against the charitable organisation (see Az.: 84 O 236/11). The organisation was ordered pay legal costs of the entire proceedings. The application to raise an appeal was denied.

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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