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Sending electronic advertising after cancellation of a streaming subscription

NewsMonitor | Data Protection – Episode 7

Published on 08 February 2023

Following a customer's complaint against a streaming service for sending electronic advertisements after cancelling their subscription, the Telecommunications Office had to decide whether the sending was lawful in the context of an "existing customer relationship" under Section 174(4) Telecommunications Act (TKG) 2021.
The customer cancelled his streaming subscription without deleting his customer account with the streaming service. After cancelling the streaming subscription, the streaming service continued to send the customer electronic advertising in the form of a newsletter without the customer's consent. The complaint lodged with the Telecommunications Office was directed against this, in the customer's view, inadmissible sending of electronic advertising.

However, the Telecommunications Office agreed with the streaming service in deciding that, despite the termination of the streaming subscription, a "customer relationship" within the meaning of Section 174 (4) TKG 2021 could still be assumed. Since the other requirements of the provision for sending electronic advertising without the customer's consent were also met, the streaming service’s sending of the newsletter in question was also permissible. The Telecommunications Office then discontinued the administrative penalty proceedings.

The decision of the Telecommunications Office is remarkable, as previous decisions assumed customer relationship had been ended within the meaning of Section 174 (4) TKG 2021 (formerly Section 107 (3) TKG 2003) when a contract was terminated. The decisive difference in this case was probably that the customer could buy and cancel streaming subscriptions in the customer account at any time—the conclusion, then, is that a customer relationship can be assumed as long as the customer account is not deleted.
In any event, case law is not consistent, and it depends heavily on the individual case whether sending electronic advertising without the customer's consent is permissible. In the event of violations, there is a risk of penalties under the TKG 2021 and the GDPR, as personal data is usually processed when sending electronic advertising.
  
Authors: Johannes Scharf, Andreas Lichtenberger  


 

Authors

Andreas Lichtenberger
Andreas Lichtenberger
Associate
Vienna

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