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
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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