Cold calling

As an unwanted telephone advertising, and cold calling, cold calls or cold calling, so-called Unsolicited calls are by companies against individuals. Such equipment not expressly approved by the callee calls are in Germany prohibited by the law against unfair competition.

In case of abuse or infringement since October 9, 2013, a fine of up to 300,000 € is possible to § 20 Act against Unfair Competition ( UWG). The penalty applicable limit of between 4 August 2009 and 9 October 2013 were six times by the entry into force of the law against rogue business practices.

Terms of Use

In the European Union, Article 13 of Directive 2002/58/EC limits ( Directive on privacy and electronic communications) telephone canvassing. When converting the EU rules into national law by the Member State which form of advertising to consumers is permitted. There are two main variants. When you opt-out system of the consumer may be called to active opposition. The opt-in system assumes that the consumer has given consent to the active call. The EU regulations make it mandatory that companies and other non- consumers are "adequate" protection.

Germany

" Cold call businesses today are part of organized crime. This can not be put off by half-hearted tighter laws; it must be prevented that these circles ever come into possession of personal data contrary. "

Combating unauthorized telemarketing

The German Bundestag voted on 26 March, 2009 second and third reading the law to combat illegal telemarketing and to the strengthening of consumer protection from special forms. It entered into force on 4 August 2009. The law provides for various changes and clarifications in the Civil Code (BGB ), the Act against Unfair Competition ( UWG), the Telecommunications Act and the Civil Code Information Regulation on duties.

Violations of the previously existing prohibition of unauthorized telephone advertising can now be punishable by a fine of up to € 50,000. The § 7 para 2 No. 2 UWG was reformulated to a telemarketer is only to be considered admissible if the called party has previously expressly declares not to receive telemarketing calls. For advertising calls, the caller may no longer suppress his phone number in order to conceal his identity. Violations of these rules to callers threaten fines of up to € 10,000. The consumer also gets more opportunities to revoke contracts that were completed by telephone. Also, contracts for the purchase of newspapers and magazines as well as lottery services can now - be revoked - unlike before.

Even the UWG in the old version presented advertiser phone calls without the consent of the consumer as unacceptable harassment prohibited dar. were and are phone calls that represent a competitive action, that is, calls that fulfill the purpose of the sale or the purchase of goods, the provision or purchase of services to promote. Included herein are immovable property, rights and obligations ( § 7 para 1 and 2 No. 2 No. 1. Conjunction. § 3 and § 2 para 1 No. 1 UWG).

According to a judgment of the Higher Regional Court of Frankfurt am Main from 2005 the existence of a business relationship is not enough to accept an implied or express consent of a consumer to marketing calls. In the present case, an insurance company had a consumer who was insured as a client of this, called to reach the conclusion of other insurance. The Higher Regional Court of Frankfurt am Main in his ruling:

" The therefore required consent of the policyholder in such calls can not be seen in the fact that the customer has notified at the conclusion of the insurance contract without further explanation his phone number. For hereby the policy regularly brings only be expressed consent to be called under the existing insurance relationship and justified by him range of insurance coverage ( see BGH ibid - Telephone Advertising V, page 220 ​​, 221). These resources include calls at the processing of a claim or in memory of the payment of insurance premiums. "

The term " advertising" is not defined in the Unfair Competition Act itself, but on the European level. He goes back ultimately to Article 2 No. 1 of the EU Directive deception of 10 September 1984, which was amended and supplemented by the EU directive on comparative advertising of 6 October 1997. After that advertising

" ... To promote any manifestation in the exercise of a trade, business, craft or profession with the aim of the sale of goods or the provision of services, including immovable property, rights and obligations. "

Legally, not yet fully understood, the question whether a call from a company with an existing business relationship of this question within the contractual relationship conversation one from another branch may submit offer.

Punishment

The Federal Network Agency imposes sanctions on violations of the statutory provisions, they shall receive ads via form or via e -mail ( [email protected] ). In a secured evidence, the Federal Network Agency will take claims to because of the number abuse measures such as switching off the phone, take back the Dialer registry etc.

57,000 written complaints were received after the entry into force of the new law on 4 August 2009 to April 2010, the Federal Network Agency. The Authority imposed fines in eleven procedures in a total amount of € 694,000. The Federal Network Agency called consumers continue to be ads.

Opinion and market research

With regard to the legal situation with calls by market research institutes, there are now judgments, deny a call authorization with consumers. So ruled the Higher Regional Court of Stuttgart, in its decision of 17 January 2002:

" The same principles as for an unsolicited telephone advertising also apply to unsolicited consumer surveys conducted by market research companies on a commercial job. "

The Hamburg Regional Court explains:

" For market research purposes also for calls therefore outweighs the interest of the individual concerned to prevent an invasion of his privacy, to the interests of the market research firm. "

Austria

In Austria, cold calls in § 107Vorlage are: § / Maintenance / RIS search of the Telecommunications Act adopted in 2003 regulated. Are inadmissible according to TKG those calls that have a promotional in nature and are made without previous consent of the called party. As in Germany, it is permissible market research company in Austria to perform cold calls if they actually serve the anonymous data collection.

Unauthorized cold calls in accordance with § 109Vorlage: § / Maintenance / RIS Search Section 4 para. 8 Telecommunications Act are punishable by an administrative fine of up to € 58,000. In this respect displays can be refunded at appropriate telecommunications office. Although the calls are illegal per se, Come contracts are concluded in Austria legally valid. To better protect consumers, a package was adopted in March 2011 in the National Council, which regulates new right of rescission of such contracts among others.

Switzerland

Since April 1, 2012 telemarketing calls are for students who their phonebook entry with an asterisk ( *) are marked (opt out) after UWG Article 3, paragraph 1. u banned. In case of violation, the called party can make a complaint to the police. Unwanted calls can also be the State Secretariat for Economic Affairs ( Seco ) are reported.

Practice

According to a survey of the Society for Consumer Research ( GfK ), there was, in the first quarter of 2006 to 82.6 million unsolicited calls in Germany. The Consumer Advice Centre ( vzbv ) starts from 300 million unsolicited marketing calls a year. Although a commitment by the call center industry is present, ignore short-term profit success targeting companies working in the industry representatives. The law was changed in 2009 aimed, inter alia, to prevent unwanted cold calls.

Defenses

According to § 8 UWG claim for injunctive relief may be brought against the performing unauthorized telephone advertising, on disposal and in danger of repetition. The claim for injunctive relief is available to the called party, referring to § 823, § 1004 BGB, since a cold call constitutes unlawful harassment and injunctive enabled. Also, competitors, unincorporated associations for the promotion of commercial or independent professional interests, chambers of handicrafts, consumer protection and competition panels can make a violation of § 7 UWG and in accordance with § 8 UWG entitled to injunctive relief.

In addition, consumer protection and related organizations claim the profit generated by the unfair conduct by the company and can accrue to the federal budget. The Consumer Protection may adopt after the submission of the name of the exporting company or client and the type of call opponent. The statutory prohibition on unauthorized telephone advertising is enshrined in Germany from the power authority. For violations of the prohibition of unauthorized telephone advertising, the Federal Network Agency may impose fines of up to € 50,000 for the UWG; for calls with suppressed or falsified number display up to € 10,000.

Further, a telephone provider at the post office, telecommunications, tele-or media services traffic obliged to surrender names and addresses of persons involved at the efficient delivery of eligible job, even compared to consumer advocates.

In addition, there are technical possibilities unwanted caller using a telephone system (eg a Fritz box ) ward. About number filter certain numbers or calls can be rejected with caller ID blocked or redirected to an answering machine.

Self-control of advertisers

In 1971, the German Dialogue Marketing Association, a Robinson list for letter or catalog mail. In these individuals the advertising delivery can disagree. Since October 1, 2005, consumers can specify their entry based on 13 categories, by selecting only certain products and topics about which they want to be not informed. The registration of your own phone number on the Robinson list ensures that at least reputable telemarketing companies do not call by the monthly adjustment of customer data.

In addition, there are several codes of ethics of the members of the association. This self- regulatory obligations on undertakings offered in which methods are also called, should not be used. In particular, " pressure sales " referred to the privacy policy, compliance with the Robinson list and the omission of fake opinion or market research surveys and the methods of.

Since 2001, the association leads the German Internet Robinson lists for email, mobile and landline phone against unauthorized electronic contact in the context of consumer protection. Here, consumers can enter for free and will not be contacted by a few hundred companies in the advertising industry. Protection against advertisers who do not adhere to the lists, however, so not backed up.