If you spend any time surfing the Internet, it’s bound to happen. You come across a story, video, or mindless rant and just can’t contain yourself. You need to share. It might be a simple as a thought-provoking article about a witty video that anthropomorphizes spam, or a story representing an endless media feeding frenzy on the crack-smoking Mayor of Toronto, or it might just be a cute video of a cat that hiccups and farts at the same time. Whatever the tone, purpose, humor, or sheer stupidity of it, you just need to share that sucker with everyone you know.
And that’s okay, as long as you’re not doing it in Germany.
You see, in September, the German Federal Court (Bundegerichtshof, or BGH) confirmed the ruling of a lower court that stated emails sent using the ‘send to a friend’ function found on many websites are considered spam.
We put in an unnecessary carriage return for effect, and will wait until you catch your breath. Because if you’re not gasping for air right now, you’re not grasping the magnitude of such a ruling. The German high court, which, according to several sources, ruled that friendly fire will be considered spam unless the recipient has given prior consent, has opened a bit of a can of worms with this seemingly innocent move.
You see, the ruling affects websites offering the service, which up until recently, has been considered just that, for the most part: a service. One could argue that the website offering the feature is trying to generate traffic to their website, and well they should. There’s nothing wrong with that, as long as it doesn’t become a source for abuse. And it’s difficult to imagine the STOAF feature being abused as a spamming mechanism, although we all know someone who just loves to send EVERYTHING to EVERYONE.
Stephen Zimprich writes in the Privacy and Information Law Blog that “send-to-a-friend” functionality on websites must be considered illegal spam email unless the recipient expressly consented to receive the email. According to the court, responsibility to obtain consent rests with the website service provider, not the user. The court further held that it is irrelevant that the act of sending was initiated by a user, since the indirect promotional nature of ‘send-to-a-friend’ e-mails falls within the scope of German direct marketing regulation under Sec. 7 German Unfair Competition Act.”
The concept isn’t necessarily a new one, having some teeth in earlier rulings in Germany. Lawyer Christoph Rittweger, in a statement to DataGuidance.com, points out that “Both the District Court and the Regional Court of Berlin already held in 2009 that companies offering a ‘send to a friend’ function should be jointly responsible (along with the ‘friend’ who submits the recipient’s email address) for the illegal pestering, at least in cases where they create an incentive for users to submit their ‘friends’’ email address, such as promising them a gift voucher in exchange for a recommendation.” In that particular case, according to DataGuidance, the recipient of the ‘friend’ emails received several emails at his business from a third party (the ‘friend’) who used a website’s STOAF function to send the emails, and that was despite the man’s objections to receiving the messages. The email that was received appeared as if the website was the sender of the messages, and not the third party, and those messages contained the requisite marketing stuff you’d expect, pushing their goods and services.
So, according to DataGuidance, “Although it was the ‘friend’ who initiated the function, the BGH ruled the website provider as the ‘disturber’ due to the content of the email qualifying as ‘advertising’ under the broad definition of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, or UWG). Additionally, as the emails were sent without the data subject’s consent, they were considered as ‘an unconscionably pestering commercial practice’ under the UWG.”
In this kind of context, the ruling does seem to make sense, but like all laws on this matter, they tend to cast a wide net in order to catch a specific type of fish. The danger here is that the STOAF functionality, which has been ubiquitous nearly as long as the WorldWide Web’s been around, could be stepping on a dangerous minefield. Zimprich points out that “In Germany, there is a strong tendency amongst the courts to be very tight with regards to direct marketing activities.”
It’s difficult to argue with that approach, but if it’s STOAF now, then what’s next?