The legislator recently saw fit to tighten the requirements for telephone advertising again. These principles continue to apply:
- Telephone advertising to consumers: Express prior consent is required.
- Telephone advertising to others: Express prior consent required, unless at least presumed consent exists.
The tightening comes as a result of new documentation requirements and the possibility for the Federal Network Agency to review the documentation. This applies to consumer matters, but it is also recommended in all other cases of telephone advertising.
Documentation requirement
Section 7a of the Act against Unfair Competition stipulates that consumers' consent to telephone advertising must be documented in an appropriate manner.
The documentation must be kept for at least five years. The five-year period initially begins from the time consent is first granted. However, the five-year period begins anew each time the consent is exercised by means of a telephone advertising call.
Therefore, the documentation of consent must be retained for the entire period of use of the consent plus five years. The initial or repeated use of consent that is more than five years old or was last used more than five years ago is not recommended in any case, because in many cases, case law assumes that consent also expires if it is not used.
There is no provision for a transitional period. Old consents that cannot be proven in accordance with the documentation requirements are not invalid, but there is a risk of a fine for violating the documentation requirements, also with regard to old consents.
Purpose and intent
The amendment had several objectives:
- to reduce incentives for violating the ban on unauthorized telephone advertising,
- to make it easier for advertising companies to check the effectiveness of the telephone advertising consent they use by documenting it, and
- to work towards more efficient sanctions against unauthorized telephone advertising.
The documentation and retention requirements once again extend consumer protection. In addition, companies receive help on how to deal with the distribution of the burden of proof arising from Art. 7 (1) GDPR and the data processor's obligation to provide evidence of consent for data processing in the area of telephone advertising.
Obligated
Anyone who advertises to a consumer over the phone has a documentation and retention obligation. Ensuring this is done is generally the responsibility of management.
All companies that purchase address data sets from address brokers or have them generated for the purpose of telephone advertising must take particular care. As the persons making the telephone calls, they are obliged to document and store the data. The purchaser or lessee of such address lists must ensure that the data are properly documented.
In addition, advertisers will no longer be able to use call centers without providing the call center with the documentation, because according to the Federal Network Agency's interpretation, call centers are also obliged to document and store the data.
Requirements for consent documentation
At the beginning of July 2022, the Federal Network Agency published a guideline on the documentation requirement. This is a working aid for companies. It is not mandatory. As a "guideline", the legal character is non-binding. Nevertheless, it can make life easier for a company to act in accordance with the guideline.
The Federal Network Agency sees the aim of the documentation as follows:
"The central goal of the documentation requirement is to enable the provision of legally secure proof of the existence of advertising consent for those persons who are called for advertising purposes. The proof must be authentic and protected against manipulation using the latest technology, and it must demonstrate that the advertising consent was obtained lawfully and covers the scope of the advertising call that is to be made to the person granting consent. The norm addressee must take all appropriate and reasonable measures to achieve these goals."
Jointly Obligated – Joint Storage Location
If the advertising company and the call center are separate, each is required to document and store the data. The Federal Network Agency makes this easier by offering the option of using a shared storage location.
Contents of the documentation
To achieve the objectives of the law and also to meet the already existing evidentiary requirements, the documentation must be quite detailed.
- WHO? – Who gave consent, but also who accepted the consent. The first and last name and residential address of the person giving consent, as well as their phone number and signature if applicable, must be documented. The company obtaining consent must, of course, provide its company name, registered office and address for service. If necessary, an internal abbreviation of the employee can be used.
- WHAT? – This concerns the content of the consent. It includes what may be advertised and who may use the consent. All factors determining the scope must be documented, including any restrictions that the consenting party expresses individually. In this regard, the Federal Network Agency requires very precise information with reference to case law. Consent for "energy supply contracts" is not specific enough, but must be specified, for example, to gas/electricity.
- WHEN? – Date and time, i.e. the typical timestamp in the database, are required.
- HOW? – How was consent given? For example: orally, verbally, in writing, textually, website, app, etc. The context must also be documented, for example, if consent was given in the context of online gambling. The entire process leading up to the declaration of consent must be documented in detail so that it can be verified at a later date whether the consumer was aware of the content of the declaration.
Documentation of revocations
In its guidelines, the Federal Network Agency deals comprehensively with the question of whether the documentation requirements also apply to revocations and affirms this. Accountability can only be met if revocations are documented, as otherwise a partial truth that is no longer current would be documented. This could lead to a situation in which consent would be documented after it had been withdrawn, even though it had actually been revoked.
The following applies to the documentation of revocations:
- WHO? – Who was involved in the revocation or change process? Both sides must be documented again.
- WHAT? – Since a partial withdrawal may have occurred, it must be documented what the withdrawal refers to.
- WHEN? - Date and time
- exchange process – The documentation should also refer to how the information was exchanged immediately between the various parties involved (e.g. the advertising company and the call center).
Usage
Since the calculation of the five-year period mentioned above depends on when the advertising consent was last used, the last usage action is also part of the documentation. In this case, the advertising call must also have been made. A call attempt does not yet have an advertising character.
- WHO? - Both sides of the communication process must be documented.
- WHEN? - Date and time must be documented again.
- HOW? – For the Federal Network Agency, the phone number of the caller and the called consumer must be documented for this usage.
Requirements for the retention obligation
Unsurprisingly, records should be stored in such a way that the data and documents are kept in a legible and permanently available form and protected against changes and premature deletion. You have to use data formats that remain legible over the long term.
It must also be possible to view the history of the database so that the previous data status can be made visible when corrections and changes are made.
No priority deletion requirement under the GDPR
Section 7a of the Act Against Unfair Competition (UWG) is also intended to prevent tricks whereby data is deleted after a short period of time with reference to the GDPR, because companies claim that they are obliged under the GDPR to minimize storage. Section 7a of the UWG therefore creates a legal obligation to store data, which takes precedence over the GDPR in this respect.
Administrative offense
A violation of the documentation and retention requirements constitutes an administrative offense according to § 20 UWG, which can be punished with a fine of up to €50,000.
Note
This overview presents the requirements and the guideline in overview. We will be happy to advise you on all the details.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.