Customers recruit customers - illegal?
The marketing concept is both simple and clever: customers refer customers. Existing customers are satisfied with a product and therefore provide the provider with the name and address of someone they know. The provider then contacts that person as well.
However, if the address is made by e-mail, the concept is no longer clever, but illegal, because such e-mails are spam according to Art. 3 Para. 1 lit. o of the Fair Trading Act. Recently, I received an advertisement by e-mail from a traditional Swiss textile company. Once again, I was interested to know where the textile company got my e-mail address. When I contacted the company, the owner spontaneously told me that an acquaintance had probably given my e-mail address to the company during a customer-acquiring-customer campaign. The boss was taken aback when I told him that such e-mails are illegal per se. Why is that?
Actually quite simple. According to Art. 3 para. 1 lit. o of the Unfair Competition Act (UWG), commercial e-mails may only be sent if the addressees have explicitly given their consent to commercial e-mails from the company in question (so-called opt-in principle) or - as an exception - if they are existing customers of the company. Neither is the case with e-mails generated via a customer-acquire-customer campaign. Thus, the sending of such e-mails is punishable under Art. 23 of the Fair Trading Act. The same applies to e-mails sent to the European Union. A brief Internet search using the keyword "customers recruit customers" shows that the traditional Swiss textile company is not alone with its illegal practice, and is even in "good company". Well-known Swiss companies from a wide range of industries also use the "customers recruit customers" concept to generate e-mail addresses.
What is to be done? The "E-mail" field in the corresponding form must be deleted immediately. And, if a telephone number is also asked for, check whether it is marked with an asterisk (*) in the telephone directory (www. local.ch). There are corresponding databases for such a comparison. This is because, according to Art. 3 Para. 1 lit. u Lauterkeitsgesetz, anyone who "fails to observe the note in the telephone directory that a customer does not wish to receive advertising communications from third parties and that his data may not be passed on for the purposes of direct advertising" is also acting unfairly and is therefore also liable to prosecution under Art. 23 Lauterkeitsgesetz. On the other hand, what is likely to be permissible under Art. 3(1)(o) of the Fair Trading Act is the possibility for existing customers, but also simply visitors to a homepage, to forward information about the relevant provider directly to acquaintances by e-mail. However, with such a tool, the e-mail address used by the customer must not be registered. This is also in accordance with the data protection principles of proportionality and purpose limitation.
"Customers recruit customers" is therefore a simple and clever marketing concept - if you observe the guard rails of the Fair Trading Act, it is also quite legal.
Ueli Grüter, LL.M., Attorney at Law, Grüter Schneider & Partner AG, Zurich/Lucerne, is a lecturer in communications law at the Lucerne University of Applied Sciences and Arts and co-editor of the book Kommunikationsrecht. ch. He comments once a month in Werbewoche on practical legal issues in advertising. Questions can be sent to the Werbewoche legal expert at [email protected].
