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Spam A Friend: To recommend or not to send

Mar 19th 2014, 08:06

Spam A Friend: To recommend or not to send

Tayyibah Suliman, Senior Associate, and Nabeela Latib, Candidate Attorney, Technology, Media and Telecommunications Practice, Cliffe Dekker Hofmeyr

Users of online shopping websites and social media platforms would recently have encountered the 'send-to-a-friend' or 'tell-a-friend' option which in some cases is accompanied by an incentive in the form of a gift or voucher. These options are marketing tools used by online service providers whereby they can obtain email and other details for their existing users' friends and family.

On the face of it, this appears to be an effective way for online service providers to generate access to a wider customer base by leveraging off of their existing customer base. As this is in effect a form of direct marketing, it is however important to evaluate the permutations of these options from a data protection and consumer protection perspective.

The German Federal Court recently adopted a conservative approach in finding that the 'send-to-a-friend' option constitutes illegal spam unless the recipient of the email expressly consents thereto.

In the matter before the court, the recipient of the emails had, despite objecting thereto, been flooded with emails. Although it is the friend of the recipient who initiates sending an email by making use of the 'send-to-a-friend' functionality, the email is ostensibly generated and sent by the online service provider. As a result, the court found that the onus is on the online service provider to obtain the recipient's consent. The basis for this decision lies in the specific requirements under German law for a consumer to expressly opt-in for the purposes of direct marketing.

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