Interesting case law on the subject of “advertising calls” – employees are not allowed to use pseudonyms on the telephone
Telemarketing judgement: The OLG Frankfurt had to deal with the following case: An energy supplier hired a service provider to acquire new customers by telephone. An employee of the service provider did not give his actual name but a fictitious name during the advertising calls. He used this pseudonym for all customer contacts.
The competitor considered this to be misleading and therefore a violation of Section 5 (1) of the Law against Unfair Competition (UWG).
On May 16, 2019, the Frankfurt Higher Regional Court ruled that company employees may not use pseudonyms for advertising calls.
We find the court’s reasoning remarkable and also relevant for companies in their daily work with call centres:
“Particularly with regard to the contractual enforcement of rights, the employee’s statements on the telephone and thus, for evidentiary purposes, his or her real name may be relevant.”
Almost more importantly, however, is the fact that the commissioning company must know exactly how the commissioned service provider works.
“Contrary to her opinion, the fact that she has concluded contracts with her subcontractors which are intended to preclude such conduct cannot exonerate the respondent. … The owner of the business which is to benefit from the business activities should not be able to hide behind third parties dependent on him. … Whether these risks are actually controllable for him in the individual case is irrelevant.”
Even concrete instructions and agreements could not release the client from his responsibility in this case.
Our tip to Telemarketing:
Contracts usually already exist with the service providers/subcontractors, such as the one pursuant to Art. 28 DSGVO “Order processing” (handling of personal data). These contracts must be reviewed regularly. It may also be possible to check the agreements for compliance at the same time in order to detect deviations from them.
Also interesting: DSGVO: Marriott hotel chain threatens heavy fine
Note: This is a machine translation. It is neither 100% complete nor 100% correct. We can therefore not guarantee the result.