Mag. Balazs Esztegar LL.M.
Attorney-at-law Vienna

Piaristengasse 41/10
1080 Vienna, Austria
Tel. +43 1 997 4102
Fax +43 1 997 4102-99
Imprint Data protection

Spam Warning

© yellomello - #50469567

The e-mail spam is almost just as old as the medium itself. There is hardly anybody to escape from advertising mails successfully. In most of cases it is about attempts at fraud which can be easily recognised as such with some practice. To detect the persons in the background of  these spam mails is nearly impossible.

However, spam, or better to say “illegal e-mail advertisement” is hiding a further viewpoint. In Austria the Telecommunications Act regulates the permissibility of commercial mailing. The regulation is complicated and leads at last resort to the result that direct promotion to unknown addressees is almost impossible or at any rate impermissible. Only in the case when the sender has received contact information for accessing his or her customer in connection with a sale or a service, may he or she use this information for direct promotion regarding his or her own similar products or services and the addressee must have received clearly and unambiguously the opportunity to reject such use of electronic contact information upon the origination thereof and, additionally, upon each transmission, free of charge and easily: in this case e-mail advertisement is admissible. If, however, the addressee has rejected the consignation from the very beginning, e.g. via registration in the so-called “Robinson List”, the e-mail advertisement shall be prohibited even in these cases.

By the way, the same rule is valid for the unsolicited calls, the so-called cold calling. The sender or caller perpetrates, in each case of the impermissible advertisement, an administrative transgression which can be threatened by sensible penalty. Simultaneously, these ways of advertisement may also be considered aggressive business practices according to the UWG (Competition Act) and have for consequence claims for injunction by the addressee or a competitor, which claims are usually enforced first via a demand letter.