Illegitimacy of “Tell-A-Friend” Features: Legal Situation and Implications in Light of the BGH Jurisprudence
The spread of digital communication has provided companies with numerous opportunities to acquire new customers, maintain existing contacts, and increase their reach. In particular, referral functions, such as so-called ‘Tell-A-Friend’ mechanisms, are common in online marketing. However, their legal admissibility must primarily be considered from the perspective of protecting the recipient’s consent. In a landmark decision dated 12.09.2013 (Case No.: I ZR 208/12), the German Federal Court of Justice (BGH) clarified that recommendation emails sent automatically from websites without the recipient’s prior explicit consent can violate applicable law.
Background: Functionality and Objectives of ‘Tell-A-Friend’ Tools
‘Tell-A-Friend’ features allow website visitors to recommend content directly to third parties—such as friends or colleagues—by email. This usually takes place by the referrer entering a third party’s email address into an online form, whereupon the website’s system automatically sends a recommendation to the specified address. While companies aim to increase their visibility through these mechanisms, recipients are regularly subject to unsolicited contact, the legal legitimacy of which must be reviewed.
Legal framework for electronic advertising
At the center is Section 7(2) No. 3 of the German Act Against Unfair Competition (UWG). This provision determines that an unreasonable nuisance is to be assumed when advertising is sent via electronic mail without the express prior consent of the recipient. An exception applies only in the case of an existing customer relationship and under certain conditions for similar products and services. However, recommendation emails sent automatically by providers generally do not fall under these exceptions, nor is the required consent usually present.
BGH Jurisprudence
With its decision, the BGH confirmed that recommendation emails initiated by third parties and sent automatically from a website are to be qualified as advertising within the meaning of the UWG. It was clarified that it does not matter whether the website operator or a third party triggers the actual dispatch—the decisive factor is that the recommendation function is ultimately offered and technically implemented in the interest of the company.
Consequences for Operators of Online Platforms
Website operators who offer ‘Tell-A-Friend’ features are liable for any resulting contacts—even if the email content is formally entered by third parties. The risk of unlawful advertising falls on the provider, since the technical infrastructure and its purpose have been designed by them. According to the court’s opinion, the recipient cannot distinguish from whose sphere the message originates. The fact that third parties, such as website users, initiate the sending process does not affect the platform operator’s responsibility.
Distinction between Private Recommendations and Current Developments
Purely private emails, where an individual recommendation is sent directly from one natural person to another without any corporate system interposed, do not fall within the scope of the advertising prohibition. The boundary to commercial action is crossed as soon as the recommendation is made with the help of a function structurally provided by the service provider, which serves specifically to initiate and spread advertising messages. According to the courts, this is regularly the case with ‘Tell-A-Friend’ mechanisms.
Technological developments must be taken into account: Automated recommendations via social networks or other digital tools are giving rise to new forms of recommendations, which are also subject to the legal guidelines outlined above. Changes in European data protection law and in the interpretation of the term ‘advertising’ necessitate ongoing legal monitoring.
Risks and need for action for companies and operators
The BGH’s decision underscores the significant legal relevance of the declaration of consent in electronic direct marketing. Unsolicited recommendation emails may not only result in claims for injunctive relief under competition law, but also claims for damages or— in the case of systematic violations—regulatory measures by data protection authorities. The case law makes it clear that companies must adapt their online presence to evolving jurisprudence in order to avoid liability risks.
The distinction between privately motivated messages and company-driven recommendation systems will continue to serve as a touchstone for implementing digital marketing strategies. The requirements for transparency, demonstrability of consent, and technical design are just as dynamic as the developments in the digital advertising market itself.
For companies, platform operators, and investors who have questions about the legally compliant design of referral and communication functions in digital offerings, an individual assessment of the specific case may be advisable. The lawyers at MTR Legal have extensive experience in IT and competition law and are available for a confidential mandate inquiry.
