Third Party EMail with Ad

CK - Washington.   Who, if anybody, should be civilly liable for an EMail that contains a product recommendation from a business website as well as advertising and is triggered by a visitor to a website that offers its visitors to send out recommendations to friends and family but fails to disclose that advertising will be added to the recommendation? On October 25, 2005, the Nürnberg Court of Appeals decided that issue in the matter 3 U 1084/05, published at Affiliate & Recht in German. The court explained that the mere availability of a product recommendation with a feature to have it sent via EMail by a visitor to a third party, despite lacking consent from the third party, does not violate the unfair competition statute, §7(2)(3) UWG, as long as the operator of the website does not add undisclosed advertising that goes beyond the product recommendation. Among the issues evaluated by the court is whether the EMmail could by-pass spam filters. It found that the fact that the EMail originated from the corporate server did not mislead the recipient and should not be regarded as a design to circumvent spam filters. The court ordered the company to cease and desist from adding undisclosed advertising to the feature that enables product recommendations, at a penalty of 250,000 Euros for each future violation or imprisonment of the management for up to six months if the penalty were not to be paid, plus costs. Its decision is subject to review by the federal supreme court in Karlsruhe, Bundesgerichtshof. German American Law Journal :: Washington USA