Online marketing liability trap
E-marketers should rethink: New and stricter rules in data protection and competition law make marketing campaigns used to date a legal risk. Violations can be costly. The willingness of the authorities to impose fines has increased significantly. Marketing should therefore be critically reviewed.
from Axel von dem Bussche
Affiliate marketing and telephone marketing are particularly under scrutiny. Both involve particularly high liability risks. But there are also new rules to be observed for mass e-mails and the use of purchased addresses in marketing.
Affiliate Marketing Liability Risk
Since 2002, affiliate marketing has taken a remarkable turn in the courts’ view. Individual regional courts had initially ruled that the advertising and trading partners (affiliates) in an affiliate network are responsible for their legal violations themselves.
A little later, the first higher regional courts placed this responsibility on advertisers who advertise their products through affiliates. Half a year ago the Federal Court of Justice endorsed this idea of agent liability. It is therefore clear: the affiliates act as an extension of the network operator, the advertiser. He must therefore be responsible for legal violations by his business partners. This also applies to large networks with several thousand affiliates – some of which are also mediated by third parties – who are now to be supervised.
It is recommended that the operators choose their affiliates carefully and review them critically. Intermediaries are often also involved. Here the advertisers should contractually secure the liability risk by means of an exemption.
Telephone marketing fine
Addressing potential customers by phone is particularly criticized by consumer advocates and the Federal Network Agency. The authorities take action in the event of complaints and impose fines. Practice shows: legal violations are now discovered faster and punished much more expensively.
The plague of all e-mail accounts comes for the most part from abroad. Providers from Germany who opt for marketing with unsolicited e-mails should better avoid it: Spam is an administrative offense, can be warned by competitors and can trigger claims for reimbursement under civil law.
Marketing with purchased addresses
There is then a data protection problem if the addressees have not consented to their personal data being passed on. It must also be checked whether the consent given is possibly too general and does not specifically include the transfer of the data for advertising purposes by third parties.
Axel von dem Bussche is a specialist lawyer for IT law at the international law firm Taylor Wessing.