Competition

Tell-a-friend function is illegal advertising

Germany’s Federal Court of Justice has ruled that the tell-a-friend function on online business’ website is comparable to illegal advertising. If such e-mails are sent to companies, they amount to an illegal interference in the business’ trade.

Tell-a-friend function is illegal advertising ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

Tell-a-friend function is illegal advertising ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

Tell-a-friend function

Many online businesses make use of a so-called ‘tell-a-friend’ function. The function allows consumers to show their approval for a product or service by sending an unsolicited e-mail recommendation drawing attention to the company. Consumers enter a friend’s e-mail address in the corresponding form on the website and send the mail.

Illegal advertising

Germany’s Federal Court of Justice (Bundesgerichtshof, BGH) determined that such e-mails should be classed as advertising (case ref.: I ZR 208/12).

The court remarked that advertising includes all those measures which are directly and indirectly aimed at increasing sales. Such measures include direct product advertising and complementary measures such as image advertising and sponsoring. The judges concluded that such tell-a-friend e-mails belong to complementary measures.

The judges found that because it cannot be assured that the recipient of the e-mail gives their consent to receiving such advertising, the tell-a-friend function amounts to illegal advertising.

Advertising objective

Interestingly, the court clarified that it is irrelevant that a third party sends the e-mail and not the company itself. Instead, the decisive aspect is the company’s objective in providing a tell-a-friend function for consumers to use.

Warning letters

Following this judgment, it is conceivable that warning letters will be sent in an attempt to prevent the use of tell-a-friend functions. Online businesses should carefully consider whether the function is worthwhile.

Kilian Kost joined WILDE BEUGER SOLMECKE as a lawyer in 2009. He specialises in internet law and competition law. In 2013 he became an accredited intellectual property lawyer.

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