Consent to Telephone Advertising & Documentation of Proof- Guidance from the German Federal Network Agency

Last year, the German Federal Network Agency (BNetzA) published their guidance on telephone advertising (PDF, German) pursuant to Section 7a UWG (German Act against Unfair Competition). According to Sec. 7a (1) UWG, whoever advertises to a consumer using a telephone call is required to document the consumer’s prior express consent to the telephone advertising in an adequate form and at the time that consent is given and must store such documentation in accordance with subsection (2) sentence 1.

The guidance serves to inform companies about the standard and application of Sec. 7a UWG.

Obligation of documentation – when, who, what and how?

When documenting advertising consent, it is important that the evidence is authentic and protected against manipulation according to the state of the art. In this way, it can be proven that the consent was obtained lawfully. From the perspective of data protection law, any doubts about the declaration of consent with regard to the will of the natural person are to the detriment of the advertising company. Therefore, the documentation must be complete, meaningful, comprehensible to outside third parties and truthful. It must also contain up-to-date information about the manner in which the advertising consent was given and about its content and scope.

The consent must be given in advance, which is why the documentation also records how the consent was obtained. The date and, if possible, the time must be stated. The documentation must show who was involved in the process of giving consent. The content must indicate who may use the consent and to which products and/or services it is limited.

Withdrawal and changes of consent

The consent can be changed or withdrawn by the data subject at any time informally and towards all those to whom the consent is directed. The currently existing advertising consent must be taken as the basis. The withdrawal has the same significance as the consent itself and must be documented in the same way.

The retention obligation in Sec. 7a (2) UWG extends to five years. Accordingly, the last advertising call based on the advertising consent must always be documented with all the above information.

In particular, the transfer of documentation from one company to another leads to a significantly increased susceptibility to errors. In this case, too, advertising companies wishing to make use of consent forms obtained from third parties must ensure that the documentation they produce meets the legal requirements for advertising consent.?To this end, they must ensure, among other things, that the third party provides them with legally flawless and complete documentation, which they must maintain in accordance with the legal requirements.

Obligation of Storage

In addition to the documentation obligation, there is also a storage obligation. This obligation includes ensuring that the documentation data is kept available for retrieval in the quality described above, in readable form, permanently available and protected against changes. This includes, in particular, protection against modification and premature deletion. The records must be stored on a data carrier in such a way that they can also be accessed in the future by the competent authority using a common procedure.

Violation of the obligations

Violations of these obligations are designed as an administrative offense. In the event of a violation, the law provides for a fine of up to EUR 50,000. The Federal Network Agency is responsible for prosecution and can demand proof from the advertising companies without delay and without official justification.