Term and Definition of Cold Call
The term Cold Call refers to unsolicited telephone contacts with potential customers, business partners, or private individuals with the aim of offering products, services, or information. In German usage, Cold Call is often also referred to as “Kaltakquise” (cold acquisition) or “Kaltanruf” (cold call). The crucial factor is that this contact is made without the prior explicit consent of the called person. Cold Calls are particularly significant in the area of direct marketing and are subject to strict legal regulations. The rules are mainly aimed at protecting consumers and safeguarding competition law.
Legal Framework in Germany
Act Against Unfair Competition (UWG)
Principles and Objectives
Das Act Against Unfair Competition (UWG) forms the central legal basis for assessing the permissibility of Cold Calls. The UWG protects market participants, especially consumers, from unreasonable harassment and unfair business practices.
Section 7 UWG – Unreasonable Harassment
According to Section 7 (2) No. 2 UWG, advertising calls to consumers without their prior explicit consent always constitute unreasonable harassment and are not permitted. For calls from business to business (B2B), at least presumed consent is required — for example, when there is a business relationship or when a relevant connection to existing interests can be assumed.
Consequences of a Violation
Violations of Section 7 UWG can be pursued by competitors, consumer organizations, and chambers of industry and commerce through warnings. In addition to claims for injunctive relief, claims for damages may also arise. Additionally, authorities may impose fines.
Data Protection Assessment (GDPR)
Processing of Personal Data
Cold Calls regularly involve the processing of personal data of the called individuals. Here, the provisions of the General Data Protection Regulation (GDPR) as well as the Federal Data Protection Act (BDSG). Even the storage or use of a private person’s phone number requires a legal basis in accordance with Art. 6 GDPR.
Data Subject Rights and Information Obligations
Data subjects must be clearly and understandably informed about the processing of their data (Art. 13 GDPR). They also have the right to object to contact at any time (Art. 21 GDPR). Violations of data protection regulations can be sanctioned with significant fines.
Telecommunications Law Regulations
The performance of Cold Calls is also subject to the Telecommunications Act (TKG). This act regulates, in particular, how telephone numbers are to be used and what information obligations exist for advertising calls. Automated call systems, so-called dialers, require special justification and consent.
Requirements for the Permissibility of Cold Calls
Requirement of Consent
As a rule, Cold Calls require the explicit and verifiable consent of the called person. This may be given in writing, electronically, or (in exceptional cases) orally, but must be provable at any time by the advertising company. General consents, for example in general terms and conditions, are not sufficient.
Presumed Consent in the B2B Sector
For commercial calls, an exception is the so-called presumed consent . This applies if, within the context of an existing or developing business relationship, it can reasonably be assumed that the called party agrees to the call. This must be interpreted narrowly, and in the event of a dispute, the company must provide proof.
Documentation and Proof Obligations
Companies conducting Cold Calls must document consents and present them in the event of legal disputes. If comprehensive proof is lacking, the decision is regularly made to the detriment of the caller.
Sanctions and Legal Consequences of Unlawful Cold Calls
Warning and Injunctive Relief Claim
Unfair Cold Calls may entitle competitors, consumer organizations, or other authorized bodies to issue a warning. The affected party may assert a claim for injunctive relief and enforce it in court.
Claims for Damages and Skimming of Profits
If an economic loss occurs, this can be claimed by way of damages . In serious cases, profit skimming is also possible (§ 10 UWG).
Fine and Criminal Provisions
The Federal Network Agency is authorized to impose fines in cases of repeated or particularly serious violations. According to § 20 UWG and § 228 TKG, the fines can amount to up to 300,000 euros or, in the event of data protection violations under the GDPR, even several million euros.
International Legal Situation and Special Features
European Legal Framework
Specific regulations also exist in the European legal area. The E-Privacy Directive (Directive 2002/58/EC) harmonizes standards for electronic direct marketing, including Cold Calls. Many countries within the EU have similar or even stricter regulations than Germany.
Differences to Other Countries
In the USA, Cold Calling is generally permitted, but subject to the Do-Not-Call List and further regulations of the Federal Trade Commission (FTC). Similar opt-in mechanisms and sanctions apply in the United Kingdom.
Exceptions and Permissible Forms of Contact
Existing Customer Privilege
In certain cases, calls to existing customers are also permitted without explicit consent, particularly if there is a factual connection to goods or services already purchased. The threshold for such an exception is, however, high and narrowly interpreted.
Information and Service Calls
Contacts that solely serve to fulfill contractual or legal information obligations are not considered advertising within the meaning of the UWG and do not require consent.
Practical Notes and Recommendations
Design of Consents
It is recommended that companies obtain consent for telephone contact clearly, transparently, and separately from other statements. The storage of consent records should be audit-proof.
Handling Complaints
If a complaint is made about a Cold Call, immediate review and, if necessary, correction of processes is required, in particular to avoid legal violations and high fines.
Summary
Cold Calls are strictly regulated in Germany and the European Union. Without the explicit or at least presumed consent of the called person, such calls are generally not permitted and involve significant legal risks. In addition to the UWG, data protection and telecommunications law requirements must be observed. Violations can result in injunctions and damage claims, fines, and other sanctions. Companies are strongly advised to carefully review the statutory requirements for any telephone solicitation and to implement measures for legally secure consent collection and documentation.
Frequently Asked Questions
Are Cold Calls in the B2C sector allowed without the explicit consent of the consumer?
From a legal perspective, so-called Cold Calls in the B2C sector, i.e. with consumers, are generally not permitted unless the called person has given prior explicit consent. This results from Section 7 (2) No. 2 UWG (Act Against Unfair Competition). An advertising call without explicit and informed consent is considered an unreasonable nuisance and may result in both competition law and data protection law consequences. Within the framework of the GDPR (General Data Protection Regulation), it must also be noted that the processing of personal data, e.g. for contact purposes, may only take place on an appropriate legal basis. Violations may lead to warnings, injunctive claims, fines, and civil liability for damages.
Are companies allowed to make Cold Calls in the B2B sector without prior consent?
In the B2B sector, Cold Calls are legally permissible only under very narrow conditions. According to case law, especially by the Federal Court of Justice, a presumed interest of the called company in the offered product or service is required. If this interest does not exist or cannot be plausibly substantiated, such contact with business customers will also be deemed an unreasonable nuisance under Section 7 (2) No. 2 UWG. Companies must carefully examine and document before making contact whether the target company has a legitimate interest in the contact to avoid legal risks. The data protection requirements of the GDPR must also be observed here.
What sanctions apply in the event of a violation of the ban on unauthorized telephone advertising?
Violations of the ban on unauthorized telephone advertising are strictly sanctioned in Germany. Pursuant to Section 20 UWG, the Federal Network Agency can impose fines of up to 300,000 euros if advertising calls are made without the necessary consent. In addition, competitors and qualified associations may assert claims for injunctive relief and removal. Objections by affected parties may also trigger claims for damages. Warnings and the obligation to submit a cease-and-desist declaration subject to penalties are common civil consequences. Violations of data protection regulations may also result in separate fines.
How must valid consent for advertising calls be provided?
Consent for advertising calls must be given explicitly, in an informed manner, and in advance. Consents given by pre-ticked boxes, hidden notices, or implicit agreement (opt-out procedures) are not considered legally valid. There is also an obligation to obtain consent clearly and separately from, for example, general terms and conditions or other declarations. Documentation of consent is essential, as the burden of proof in legal disputes lies with the advertising company. For evidence purposes, it is recommended to carefully archive the date, exact wording of consent, and the method of granting consent.
What role does the GDPR play in Cold Calls?
The GDPR (General Data Protection Regulation) regulates the processing of personal data that inevitably occurs in the course of Cold Calls. The legal basis for such contact can either be prior consent (Art. 6 (1) a GDPR) or, in exceptional cases, legitimate interest (Art. 6 (1) f GDPR). However, for telephone advertising, explicit consent is usually required, since the interests, rights, and freedoms of the data subjects generally prevail. In addition to obtaining and documenting consent, companies must also fulfill information obligations (Art. 13 ff. GDPR) and be able to provide data subjects with access, erasure, and objection rights. Non-compliance can result in substantial fines.
How can those affected defend themselves against unauthorized Cold Calls?
Affected persons have several legal options to protect themselves against unwanted Cold Calls. They can file a complaint with the Federal Network Agency, which may initiate official proceedings and, if necessary, impose a fine. Civilly, affected individuals have the right to assert claims for injunctive relief against the advertising company. For this purpose, a lawyer or consumer protection association can be involved. Claims for damages may also be asserted, particularly in the event of violations of data protection regulations under Art. 82 GDPR. Furthermore, affected persons can contact the data protection supervisory authorities.
Are there exceptions or special regulations for certain industries or non-profit organizations?
The law generally does not provide for sector- or industry-specific exceptions for unauthorized telephone advertising. Non-profit organizations, associations, or political parties must also strictly observe the legal requirements, especially the need to obtain explicit consent. The regulations of the UWG and GDPR apply regardless of the caller’s objective. Only minimal special regulations can exist on a case-by-case basis through specific ordinances, for example for official announcements or certain information and warning systems; for standard advertising calls, however, these are not relevant.
