Privacy & Cybersecurity Law Blog

On July 27, 2010, the German Federal Network Agency, the Bundesnetzagentur (or “BNetzA”), issued a press release stating that it had recently levied €194,000 in administrative fines in two cases against companies accused of violating a ban on cold calling.  The cases involved consumer complaints implicating the companies in several illegal acts.  The companies claimed they had obtained prior consent from the consumers they contacted.  The BNetzA, which is the regulatory office for electricity, gas, telecommunications, post and railway markets in Germany, rejected the companies’ argument on the grounds that the “consent” was based on the consumers’ implicit acceptance of the terms of use associated with certain Internet games.  The terms of use included a provision regarding a participant’s consent to telemarketing by partners, sponsors and other companies.  The BNetzA stated that, because these terms of use did not satisfy the legal requirements for consent, the company had not obtained valid consent to call the consumers.

The BNetzA has indicated that these investigations and administrative fine proceedings are time consuming and complex.  For example, the BNetzA must bring evidence showing that the caller culpably made prohibited advertisement calls.  Proving such intent may require questioning multiple witnesses and a legal examination of how prior consent was obtained in each case.

Since August 2009, making unsolicited marketing calls or suppressing caller ID in Germany constitutes an administrative offense subject to fines of up to €50,000 (for calls made without prior consent) and €10,000 (for not displaying the number).  Through April 2010, the BNetzA had received over 57,000 written complaints regarding unsolicited telephone advertising, and, to date, the BNetzA has completed eleven administrative proceedings resulting in fines totaling €694,000.  The proceedings thus far have concerned mainly violations of the ban on cold calls and failure to display the caller’s number.  Numerous investigations are pending at this time.