Unsolicited

Term explanation and definition: Unsolicited

The term Unsolicited derives from English and literally means “unsolicited” or “unrequested.” In legal contexts, “unsolicited” is used to describe actions, communications, or offers that occur without prior consent or explicit request from the recipient. In various areas of law, especially data protection, competition, and contract law, the assessment and regulation of unsolicited acts plays a central role. In particular, protection against unrequested advertising, contact, or the receipt of goods and services is of particular significance.

Areas of application for the term “unsolicited” in law

Unsolicited in data protection law

Unsolicited electronic communication

In data protection law, the term is mainly used in connection with unsolicited emails, messages, or telephone calls. According to the General Data Protection Regulation (GDPR) and the Telecommunications Telemedia Data Protection Act (TTDSG), any form of direct marketing considered “unsolicited” generally requires the recipient’s prior explicit consent (opt-in principle). This includes, among others:

Unsolicited Emails (SPAM): Sending advertising emails without explicit consent can constitute an unreasonable nuisance within the meaning of Section 7 (2) of the UWG (Law Against Unfair Competition) and is generally prohibited.
Unsolicited telephone calls: Advertising calls to consumers are also not permitted without prior explicit consent.

Data protection risks and consequences

Unsolicited communication can lead to significant fines and regulatory actions. Data controllers must ensure that valid consent is in place before sending promotional communications. The burden of proof for the existence of consent lies with the sender.

Unsolicited Advertising

Competition law classification

Competition law protects consumers and competitors against unfair conduct. According to Section 7 of the UWG (“Unreasonable Nuisances”), sending advertising (especially by email, fax, telephone, or SMS) without explicit consent is generally prohibited. Among other things, unsolicited advertising to end consumers is explicitly listed, where explicit (and demonstrable) consent must have been obtained in advance.

Exceptions and grey areas

Existing customer privilege (Section 7 (3) UWG): In certain cases, sending advertising to existing customers is permitted even without explicit consent, provided strict requirements are met.
Business transactions between companies: In the B2B sector, somewhat more relaxed regulations apply, but even with business clients, presumed consent is required.

Contract Law: Unsolicited Goods and Services

Sending goods without ordering

The German Civil Code (BGB) protects consumers from receiving unsolicited deliveries of goods, also known as “Unsolicited Goods”. According to Section 241a BGB, the recipient of unsolicited goods is neither required to accept nor pay for them. Any claims for payment or return by the sender are generally excluded unless there was a prior order or explicit consent from the recipient.

Prohibition of management without mandate

Within the framework of so-called “management without mandate” (Sections 677 et seq. BGB), no claim for reimbursement of expenses or for return may be established against the recipient if a transaction has been carried out entirely without their will.

International aspects and regulations for unsolicited communication

European regulations (EU)

The e-Privacy Directive 2002/58/EC governs the conditions for sending “unsolicited communications” for direct marketing purposes within the EU. A key requirement is the prior consent of the recipient. EU Member States implement these rules into national law, which can lead to differences in details.

International regulation: CAN-SPAM & others

Comprehensive regulations also exist outside Europe:

USA (CAN-SPAM Act): This US federal law sets minimum standards for the sending of unsolicited emails and provides for extensive regulations and penalties for violations.
Australia (Spam Act 2003): Sets similar standards for electronic communications.

Differences often arise regarding the definition of “prior consent” and the sanctioning of unsolicited messages.

Legal consequences of violations of the prohibition on unsolicited actions

Warning notice and claims for injunctive relief

Unsolicited advertising measures can give rise to civil claims for injunctive relief and damages. Both competitors and affected recipients may respond to unlawful advertising through warning notices and legal proceedings.

Administrative sanctions and fines

Data protection authorities may impose fines if personal data is used for advertising purposes without valid consent. The amount is determined by the company’s turnover, the severity and duration of the violation, and other circumstances.

Summary and legal assessment

Unsolicited refers in legal terms to all actions, offers, or communications that occur without explicit request or prior consent from the recipient. In almost all relevant areas of law—especially data protection, competition, and contract law—there are strict requirements and regulations to protect consumers as well as businesses from unsolicited actions. Legal consequences range from warning notices and fines to civil claims. The distinction between permitted and prohibited unsolicited acts fundamentally depends on the consent or explicit wish of the recipient.

Frequently Asked Questions

When is contact considered “unsolicited” in the legal sense?

In legal terms, a contact is considered “unsolicited” when a person or a company contacts a recipient—typically via email, phone, fax, or letter—without their prior explicit consent, and transmits advertising, offers, or other information. It is important to note that both national and European regulations specify this term precisely. In Germany, for example, the Law against Unfair Competition (UWG) and the General Data Protection Regulation (GDPR) are particularly relevant. Email marketing without the recipient’s prior explicit consent is regularly classified as unlawful. Likewise, telemarketing to consumers without their explicit consent is prohibited. Even sending newsletters after a single customer contact can be problematic without additional consent. The legal framework thus defines very precisely when communication is considered unsolicited and therefore potentially unlawful.

What legal bases regulate “unsolicited” messages in Germany?

Various laws regulate the fight against unsolicited messages in Germany. The primary provision is Section 7 UWG, which explicitly addresses the prohibition of unreasonable nuisances. This paragraph clarifies that, in particular, advertising by email, SMS, or telephone is prohibited without prior explicit consent. In addition, the Telecommunications Telemedia Data Protection Act (TTDSG) requires consent, especially regarding cookies and digital communication channels. Supplementary, the GDPR applies in many cases, particularly concerning the processing of personal data in relation to unsolicited messages. Competition law provisions are further specified and interpreted by court decisions, so the legal situation is being continually refined.

What penalties can be expected for violating the prohibition on “unsolicited” contact?

Whoever unlawfully contacts a potential customer, business partner, or consumer faces various sanctions. Initially, the UWG provides for claims for injunctive relief by competitors, consumer protection associations, and affected recipients; this may result in cost-related warning notices and preliminary injunctions. In addition, affected individuals may claim damages. In cases of data protection breaches, such as violations of the GDPR, substantial fines can also be imposed, potentially amounting to up to 20 million euros or 4% of a company’s worldwide annual turnover in extreme cases. Enforcement is carried out by both civil courts and data protection authorities.

Are there exceptions where “unsolicited” messages are legally permissible?

There are narrowly defined legal exceptions to the prohibition on unsolicited messages. In particular, under certain conditions, advertising to existing customers under Section 7 (3) UWG can be permitted without renewed explicit consent: the entrepreneur must have received the email address in connection with the sale of a good or service, the advertising must only concern similar products, the customer must not have objected to its use, and at each instance, the customer must be clearly and explicitly informed of their right to object. There are also different, but nevertheless strict, rules for B2B communication, which may, for example, consider so-called “legitimate interest,” although this must always be carefully examined.

What must consent fulfill to legally avoid “unsolicited”?

Valid consent must be specific, informed, and given voluntarily. In practice, this means the recipient knows exactly what they are consenting to (for example, receiving a particular newsletter or promotional offer) and that the contents of future communications, the processing purpose, and the right of withdrawal are explained transparently. Consent must be documented and presented as proof at any time upon request (the so-called opt-in requirement). “Coupled” consent—meaning consent linked to other contractual obligations—is inadmissible unless it is essential for the contract. Additional requirements apply for minors (e.g., parental consent).

How can a recipient defend themselves against “unsolicited” messages?

Affected persons can legally defend themselves against unsolicited messages. They have the right to object to further use of their data and receipt of future messages (“opt-out”). If ignored, the recipient may initiate a warning notice through consumer protection or competition associations or file a civil law injunction claim. A complaint can also be filed with the competent data protection authority, which may initiate investigations and impose sanctions. Furthermore, there may be entitlement to compensation, both under data protection law (Art. 82 GDPR) and general civil law principles. Companies should note that court decisions are regularly made public and can result in both loss of reputation and trust.

Are there any special considerations for cross-border “unsolicited” messages within the EU?

In the case of cross-border contacts between companies or individuals in different EU Member States, the provisions of the GDPR and the ePrivacy Directive take precedence, provided personal data are processed. However, national differences must be observed, as each Member State has implemented the directives differently into its own law. Companies must particularly consult relevant data protection authorities and comply with any specific consent requirements. In case of disputes, the so-called “one-stop-shop” principle may apply, meaning that the data protection authority at the company’s main establishment is responsible for coordinating supervision. If the legal situation is inconsistent, not only fines but also complex legal disputes in various countries may arise.