Everyone knows this: You check your personal emails and find a lot of advertising among them. This annoys many people, so they withdraw their consent from the sender. After that there is peace – but not always, as in the case of a Munich resident who has now sued a pay-TV provider because of his advertising mails in civil proceedings before the district court and was right.
In December 2021, the plaintiff had expressly objected to the pay-TV provider using his personal data for advertising purposes. In January of this year, however, advertising from the pay-TV provider popped up again on the plaintiff’s screen. He then asked the company out of court to cease and desist. But the pay TV provider did not respond.
Since the Munich resident was convinced that his objection was effective and could be made at any time and, in particular, informally, in accordance with the data protection regulation, he brought an action. In the hearing before the district court, however, the pay-TV provider explained that the plaintiff had been informed in his email from December that he could “quite simply withdraw the corresponding consent in the customer management system”. But that didn’t happen. Since the plaintiff did not do this, one could assume that the consent would continue to exist. The responsible judge saw this completely differently. He fully upheld the lawsuit and found clear words in his verdict.
The sending of advertising e-mails against the plaintiff’s “clearly declared will” constitutes an encroachment on his “protected private sphere and thus on his general personal rights”. Personal rights protect the area of private life and give those affected “the right to be left alone in their private lives”.
Thus, the individual has the right to keep his privacy free from “undesirable influence of others” and the opportunity “to decide for himself which people and, if necessary, to what extent he wants to have contact with them”.
According to the judgement, the general right of personality is only impaired if “it occurs against the clearly declared will of the person concerned. The court considers the objection of the pay-TV provider to be incomprehensible, according to which the plaintiff made certain settings in his “customer management system”. would have had to do in order to stop receiving advertising mails, since the plaintiff had “expressly and unequivocally” objected to the use of his data for advertising purposes.
In the event of an infringement, the pay-TV provider faces a fine of up to 250,000 euros or, alternatively, imprisonment of up to six months, “to be carried out on the managing director or managers”. The judgment of the district court (Az. 142 C 1633/22) is not yet final.