In February 2018, the Zurich Supreme Court protected a non-acceptance order of the Zurich-Sihl public prosecutor’s office (order UE170371 from 6.2.2018, Swisslex). It was about three unsolicited e‑mails from a Peruvian law firm, which is the Complainant and his office colleague reached. The addressee, an unnamed (but easily identifiable) Zurich lawyer working in the field of intellectual property law, was so enraged by this that he filed a suit with “Stop harassing us immediately with your unsolicited bullshit spamming you fucking crooks!!!” replied (which, by the way, is “not worthy of a Zurich lawyer” according to the Supreme Court) and subsequently wrote an eight-page submission to the public prosecutor’s office and a twenty-page notice of appeal to the Supreme Court.
Against this background, one would hardly want to hold the confirmation of the non-acceptance against the Supreme Court (and the Federal Supreme Court has rejected an appeal filed against this in the judgment 6B_468/2018 dismissed). However, the legal reasoning is remarkable:
At first, the OGer wanted to leave open whether here at all “Mass advertising” within the meaning of Art. 3 para. 1 lit. o UWG The public prosecutor’s office had denied this because only two recipients received the few incriminated e‑mails. However, the sending was apparently automated, which would have to suffice (cf. message FMG 2003, BBl 2003 7991: “It is automation that makes mass mailing of advertising possible. That is why the term mass advertising includes all types of automated advertising (automated calls, fax, SMS, email, etc.).”).
The Supreme Court already considered the facts of the case not to be fulfilled for a different reason, although in the end it did interpret the concept of mass advertising, as will be shown. The court proceeded from the general clause in Art. 2 UWG which is conceptually correct, and based on this limited the scope of application of the special provision of Art. 3 Para. 1 lit. o UWG one:
The special facts of Art. 3 – 8 UWG […] are not mere “inducement material” under the general clause, nor does the existence of a special standard necessarily lead to a limitation of the scope of an examination under unfair competition law. In the application of the special facts, which exemplify unfair conduct, it is necessary to ask about the meaning and purpose of such a special regulation. […] Thus, not every conduct mentioned in the law is actually subject to the UWG. There must be a deceptive or otherwise contrary to the principle of good faith competitive act. […] The decisive factor is […] the Overall impression that a behavior leaves on the audience. In this context, the customer can generally be expected to exercise a certain degree of judgment, a certain degree of distinctiveness and a certain degree of resistance to advertising claims […].
Following this reasoning, the high court judged the incriminated e‑mails not to constitute an offense because they violated the Unfairness threshold of Art. 2 UWG not reached:
Obviously, respondent 1 or the law firm managed by him directed his e‑mails specifically to law firms whose main activity lies in the legal field of intellectual property law cultivated by both parties. It may be true that by sending the e‑mails, respondent 1 hoped that his law firm would one day be considered or proposed by the complainant as correspondent attorney or Peruvian representative of a client in an international intellectual property case with a Swiss and Peruvian connection. With the factual indications to the judicial vacations in Peru […], to the entry of two lawyers in the law office […] and to the procedure of entering a trademark or a patent in an electronic register in Peru, however, respondent 1 acted neither deceptive nor in any other way contrary to good faith within the meaning of the general clause of Art. 2 UWG and also not intrusive in a particular way.
The complainant with his professional experience as a lawyer specialized in intellectual property law was easily able to assess the significance of these mails for himself and his work and also to react to them appropriately. The three e‑mails each contain a reference to the possibility of unsubscribing from the mailings of respondent 1 […].
The three emails on their own caused neither cost consequences nor significant time and psychological burdens on the part of the complainant. […]
In conclusion, the Supreme Court derives from Art. 2 UWG so a Triviality threshold ab: What does not produce tangible, undesirable consequences is not unfair. This is correct insofar as the UWG not cover impairments of competition that are not appreciable. One wonders, however, whether the Supreme Court should not have examined this point in the context of the element of mass danger. In that case, the higher court would have had to answer the question of whether the automation of the mailing does not fundamentally exceed the de minimis threshold according to the legislator’s intention, in the sense of an abstract endangering offense. Because with the chosen approach, the upper court avoided the element of massiveness, but in the end answered it by apparently requiring a larger number of emails or recipients (which also corresponds to a doctrine on the concept of massiveness).
Art. 16 e‑Privacy Regulation (draft)
It is interesting to look at the corresponding regulation under the e‑Privacy Regulation (which will have a very wide territorial scope). The relevant Art. 16 does not require massiveness and reads in the Formulation proposal from May 4, 2018 as follows:
Article 16 – Unsolicited and direct marketing communications
1. natural or legal persons shall be prohibited from using electronic communications services for the purposes of sending direct marketing communications to end-users who are natural persons unless they have given their consent.
2. notwithstanding paragraph 1, where a natural or legal person obtains contact details for electronic message from end-users who are natural persons, in the context of the sale of a product or a service, in accordance with Regulation (EU) 2016/679, that natural or legal person may use these contact details for direct marketing of its own similar products or services only if such end-users are clearly and distinctly given the opportunity to object, free of charge and in an easy manner, to such use. The right to object shall be given at the time of collection of such end-users’ contact details and, if that end-user has not initially refused that use, each time when a natural or legal person sends a message to that end-user for the purpose of direct marketing.