Is cold calling legal 1
Telephone acquisition in B2B - what is prohibited, what is allowed?
One of the most hotly debated topics in dialogue marketing is surely the question of what is or is not allowed in this area. Since advertising by e-mail and / or fax without consent is prohibited in the context of cold calling, the main focus of this content-related dispute is in the area of telephone acquisition.
But what is cold calling anyway? The Duden defines this as acquisition that takes place by establishing contact (here: by telephone) without a prior business relationship or prior consent of the potential customer, whereby acquisition is understood to mean all measures of customer acquisition. In short: as part of a telephone acquisition, we call a customer without being asked who was not a customer before.
What is the legal situation? Is cold calling by phone even allowed in Germany?
One must first differentiate between so-called cold calls to entrepreneurs and consumers. The following applies to consumers: cold calling by telephone is always prohibited without prior express consent! In the case of entrepreneurs, telephone advertising may be permitted without prior express consent if at least presumed consent is available.
What is presumed phone acquisition consent?
The case law has established a large number of criteria for this, which of course always have to be seen in individual cases and are difficult to assess across the board. The BGH (BGH GRUR 2008, 189 - search engine entry) stated, for example, in connection with a classic (free entry on a search engine and telephone advertising for a chargeable upgrade):
An unsolicited call to a trader for advertising purposes can be assessed as an unreasonable anti-competitive nuisance if the caller could not previously assume that the person to be called would agree to the call as it was planned. The free entry of a trader in the directory of an Internet search engine, which is only one of a large number of similar search engines, does not fundamentally justify the assumption that the trader will agree to a call to check the data stored about him if the telephone route was chosen to at the same time to submit the offer of a paid service (here: the conversion of the free entry into an extended and paid entry).
In other words: Just because you have registered in the free area of an Internet search engine, you do not automatically want to receive a call asking whether you would like a fee-based entry!
A mere general factual reference to the business of the person to be called is also not sufficient (BGH, judgment of 24.01.1991, Az. I ZR 133/89) or the fact that an entrepreneur has entered his data in the yellow pages.
Rather, there must be a concrete reason, which can be derived from the area of interest of the call recipient, which could justify the advertising call (BGH GRUR 2001, 1181, 1183 - telephone advertising for goods for the blind). It is not even sufficient that the caller can assume a current or specific need for the goods or services offered or requested. It must also be added that the called party presumably also agrees to be contacted by phone.
For an assumption that the call recipient could also agree to a call, there are various criteria that speak for themselves, but they must always be assessed on a case-by-case basis:
- Existence of an existing business relationship
- Prior contact (for example at trade fairs) and exchange of business cards for the purpose of establishing contact
- Industry standard (for example, the furniture manufacturer calls the distributor)
So how do I have to proceed?
As shown above, cold calling is fraught with risks. It is therefore necessary to take appropriate precautions. Before contacting us by phone, the following should be checked accordingly:
Does the person I want to call for advertising purposes actually have a specific interest in my product / service?
Does the person presumably agree that I should call them about it?
If the test is positive, however, when you call, you should definitely make notes of who you spoke to and when, and ideally you should also be asked whether you might be able to call again. This should also be noted accordingly. Danger! The business owner himself / herself cannot be a witness in a process. It is therefore advisable to have an employee make and document the corresponding calls. In any case, it must also be checked whether instructions are required from the point of view of data protection.
What can happen?
In general, calls for the purpose of cold calling in the corporate sector are often tolerated, even if they are illegal or at least move in a certain gray area. Nonetheless, if someone actually feels harassed, there is a risk of warnings that can quickly cost a few hundred euros, as well as declarations of cease and desist which, in the worst case, can paralyze future cold acquisition activities. So you always have to be careful!
Written by Holger Loos
Lawyer and specialist lawyer for IT law Holger Loos is an IT and media lawyer from the very beginning. He was one of the first specialist lawyers for IT law in Northern Bavaria and is now one of the internet law experts in Germany. He teaches as a lecturer at the Friedrich-Alexander-Universität Erlangen-Nürnberg at the interface marketing / law, at the IHK Schweinfurt-Würzburg among other things on media law and is a sought-after speaker, author and interview partner on topics related to IT law / media law.
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