In a judgment dated 15 December 2015, case no VI ZR 134/15, (“Judgment”) the German Federal Supreme Court (“FSC”; Bundesgerichtshof – BGH) confirmed that an electronic mailbox held by a consumer shall be covered by the so-called private sphere of a natural person as part of its general right of privacy. Consequently, the FSC concluded that automatic reply emails by a company to a consumer, which contain not only a confirmation of receipt of an earlier email sent by the consumer but also additional adverts, shall qualify as violation of the natural person’s general right of privacy, provided that the relevant consumer has expressly refused to receive advertisings.

Facts of the Judgment

The plaintiff, a consumer, sent a notice termination to the defendant, an insurance company. The defendant sent an automatic reply to plaintiff, confirming receipt of plaintiff’s email and announcing a detailed response to follow by separate email. In the signature of defendant’s email, advertising statements in relation to certain weather services were displayed. The plaintiff responded to defendant’s email, demanding that defendant stop sending such advertising statements. Notwithstanding, defendant’s email system again sent an automated response, containing the same adverts. Finally, respondent filed an injunction in order to prohibit defendant to send the aforementioned (or similar) electronic adverts without plaintiff’s express consent.
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