Expiration of consent for advertising purposes

Newsletters sent by entrepreneurs are an important form of advertising and an opportunity to present the services or goods offered to customers. Because the sending of newsletters involves the processing of personal data, the entrepreneur must be sure that they have an appropriate and valid legal basis for the processing of customers’ personal data in the area of direct marketing. In most cases, the consent of the natural person to whom the personal data relates is within the meaning of Article 6 sec. 1 letter a of the GDPR. Sending newsletters to customers without valid consent therefore constitutes a significant breach of personal data processing as well as a number of unpleasant consequences and claims for the individuals whose personal data has been breached. Furthermore, according to the opinion of the Munich District Court in its ruling of 14.02.2023, case no. 161 C 12736/22, the consent previously given by the customer is not permanent and can also ‘expire’ by itself under certain circumstances.

Background

The plaintiff was a member of the golf club until 2017 and gave his express consent to receive newsletters as part of this membership. After terminating his golf club membership, the plaintiff no longer received any newsletters until the end of 2021. In 2021, he received an email in his email inbox with Christmas wishes and information about changes for the new year. In the course of the court proceedings, the defendant invoked the consent given by the plaintiff in 2015, which the plaintiff claimed was no longer effective. In this case, the court had to decide whether the plaintiff was entitled to claim injunctive relief against the defendant.

Do the consents have an expiration date?

The Munich District Court took the view that the consent originally granted for marketing purposes in the case in question had become invalid due to the time lapse in the circumstances established. The reasons for the ruling also pointed out that it had not been conclusively clarified in either case law or in the literature after what period of time and whether an individual’s consent for marketing purposes expires at all. In the present case, the Munich District Court relied on the continuing interests of the consenting party and pointed out that in the event of a long-term cessation of golf club membership, there is no basis for assuming that the plaintiff has a continuing interest in receiving newsletters.

The District Court held that the entrepreneur had no basis for concluding that the consent given several years ago was still valid when the plaintiff had not been a member of the golf club for more than four years. According to the court, it was first necessary to examine the above facts and reasonably determine whether the entrepreneur’s consent was in fact still valid. The Munich District Court therefore found that the plaintiff’s personal rights had been violated and ordered the defendant to cease and desist from further violations.

In this case, the ruling of the Local District Court of Munich does not expressly answer the most important question for the entrepreneur, namely the specific indication of the period of time after which the consent given by the customer should be deemed to have expired. However, in view of the court’s position, it can be assumed that the effectiveness of the consent depends crucially on whether the customer still has an interest in receiving information from the entrepreneur in the form of a newsletter, which requires a case-by-case assessment of the circumstances of the individual situation.