Admissibility of Payment Requests via SMS – Current Jurisdiction of the OLG Hamm
The question of whether sending payment requests to consumers via SMS is permissible is highly relevant in practice: companies and debt collection service providers are increasingly using digital means of communication to assert claims promptly. The Higher Regional Court of Hamm dealt with the admissibility of a payment request via SMS in a decision on May 30, 2024 (Case No. I-4 U 252/22), providing important guidelines for practice.
Context and Background of the Decision
In the original proceedings, a consumer association sought injunctions against a debt collection service provider. It was particularly criticized that a debtor received a payment request via SMS on a Sunday, which urged a telephone contact to clarify outstanding claims. The association considered this a violation of the prohibition of unreasonable harassment according to § 7 para. 1 sentence 1 UWG. The lower court agreed and prohibited sending payment requests via SMS.
Legal Assessment by the OLG Hamm
The OLG Hamm dismissed the appeal and distinguished between unsolicited advertising messages and the enforcement of existing claims.
The Term “Unreasonable Nuisance”
The court first clarified that the term “unreasonable nuisance” pursuant to § 7 UWG must be interpreted in light of the specific communication form and content. A payment request differs significantly in its aim from an advertising message: while the purpose of an advertising message is to promote business transactions, a demand for payment merely represents the enforcement of an existing claim.
SMS as a Means of Communication
The OLG Hamm emphasized that modern communication—especially in the field of claims management— increasingly uses digital and mobile channels. SMS messages are short compared to calls or emails and can be quickly acknowledged. According to the court, transmitting a payment request via SMS is not fundamentally inadmissible and does not automatically fall under the ban on unreasonable harassment.
Protection Interests of the Recipient
Nevertheless, the court highlighted that there may be a risk of abuse. In particular, the form of approach should not lead to debtors being systematically pressured. Therefore, the admissibility must always be assessed on a case-by-case basis considering the circumstances, timing, and frequency of sending. In the specific case, a single SMS on a Sunday was considered still reasonable.
Implications for Companies and Creditors
For companies, the decision results in increased legal certainty regarding the initial contact with debtors through mobile means of communication. However, the decision also underscores the necessity for a situation-appropriate selection of the communication channel and the protection of the legitimate interests of those affected.
Preventive Action Options and Compliance Requirements
Sending payment requests should always be done with restraint and taking into account socially appropriate communication times. Repeated or belated messages can still be unlawful and may constitute grounds for injunctions. In any case, companies must ensure that personal data is processed in compliance with data protection regulations.
Employment and Contractual Points of Reference
Between creditor and debtor, the choice of communication medium may also arise from the respective contractual relationship or further employment or service law agreements. If such regulations exist in individual cases, they must be given priority.
Conclusion
The ruling of the OLG Hamm highlights the differentiated consideration of digital communication channels in claims management. Classification as a competition violation under § 7 UWG does not readily apply to payment requests via SMS; the decisive factor is always the individual case and the safeguarding of legitimate interests on both sides. Companies and creditors are obliged to continuously observe the current legal situation and jurisprudence and align their internal processes accordingly.
Should legal questions arise in connection with the communication of claims, particularly when choosing the permissible contact methods, the attorneys at MTR Legal are available for legal support.
