Germany Updates Privacy Guidance through Unfair Competition Act – JD Supra

Morgan Lewis - Tech & Sourcing
The German Conference of DPAs (the DSK) has released new (legally non-binding) detailed Guidelines dated February 18, 2022 with respect to direct marketing in Germany.
With the DSK as their forum, the federal and state data protection authorities in Germany have adopted the Guidelines jointly to summarize the key principles of the GDPR for direct marketing. The Guidelines are not legally binding. The DSK not only evaluated the GDPR rules, but also looked at Section 7 of the German Unfair Competition Act (UWG), which contains Germany-specific rules for when existing customers can be contacted for marketing purposes.
Section 7 UWG implements various EU Directives. Section 7 (1) UWG states that a commercial practice which constitutes an unacceptable nuisance to a market participant is illegal, particularly in cases where it is apparent that the solicited market participant does not want this advertising. In other words, sending marketing materials to existing customers is only allowed if it does not infringe with Section 7 UWG. However, Section 7 UWG does not exclude a consumer receiving marketing materials due to their informed and freely revocable consent under the consent provisions of the GDPR. The following is a summary of the electronic marketing rules in the new Guidelines:
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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