Unsolicited email advertising (“spam”) is unlawful and can be pursued by way of a cease‑and‑desist letter. Some lawyers are currently making very aggressive use of this – including a Berlin‑based attorney who, in a cease‑and‑desist letter we have before us concerning unsolicited email advertising, asserts an amount in dispute of EUR 9,000 and, in addition, claims “damages” of EUR 400. Recent decisions of the Berlin courts, however, make it clear that this approach goes far beyond what the case law considers permissible.

Legal background: Email advertising is always an unreasonable nuisance

The starting point is section 7(2) no. 3 of the German Unfair Competition Act (UWG): under this provision, email advertising without the recipient’s prior express consent is always deemed an unreasonable nuisance. The Federal Court of Justice (BGH) and the Berlin Court of Appeal (Kammergericht, KG) have repeatedly confirmed this assessment and clarified that the legislature does not regard the interference with the individual – whether in a private or business context – as negligible. Other lawyers are likewise entitled to defend themselves against such practices.

It is important to note that the courts do not look only at the effort involved in deleting a single email. What is decisive is also the underlying “dangerousness” of the advertising practice – that is, the risk of becoming part of a mass phenomenon. Email advertising is cheap and easy for the sender, whereas for the recipient there is an obvious risk that a large number of advertising emails will significantly disrupt email traffic in the long term. From this, the courts derive a serious interest in injunctive relief – but that interest also has its limits.

Assessment of the amount in dispute: Why EUR 3,000 value (Gegenstandswert) is the “ceiling”

According to the established case law of the BGH, the amount in dispute is determined by the claimant’s interest in preventing further infringements. This interest is assessed on the basis of the so‑called “attack factor”: how serious is the conduct to be prohibited, what scale, intensity and frequency of further interferences are to be expected, and how great is the risk of repetition?​

On this basis, the Berlin Court of Appeal has clearly established in a series of decisions:

• For a single unlawful advertising email, the value in dispute in main proceedings is, as a rule, EUR 3,000.

• It is irrelevant whether the claim is based in law on the general right of personality or on the right to an established and operating business.

• In preliminary injunction proceedings, the value is regularly set at two‑thirds of the value in the main proceedings, i.e. at EUR 2,000.

This approach has developed into settled case law in Berlin. The Court of Appeal explicitly justifies this by pointing out that the legislature always classifies email advertising as an unreasonable nuisance, that the claim for injunctive relief aims at preventing further mailings in the long term (over decades), and that at the same time an appropriate amount in dispute must be found that does not become excessive.​

Berlin Regional Court confirms: EUR 3,000 – no more

This is particularly clear in a recent order on the amount in dispute issued by the Berlin Regional Court (15 T 2/26), arising from the preliminary‑injunction proceedings 21 C 5296/25 eV before the Berlin‑Mitte Local Court. In this order on the amount in dispute, the Regional Court expressly confirmed the line taken by the Berlin Court of Appeal. We have the decision on file.

The court first clarifies that the general principles for determining the amount in dispute apply: the decisive factor is the interest in injunctive relief, which follows from the dangerousness of the conduct and the damage to be feared. It refers to the relevant case law of the BGH and the settled case law of the Berlin Court of Appeal. It then states the crucial point: there is “no reason” to depart from the established case law. For the sending of a single advertising email, the amount in dispute in the main proceedings is therefore to be set at EUR 3,000, so that in preliminary‑injunction proceedings a value of EUR 2,000 must be applied.

This makes it clear that in Berlin, for the typical spam scenario, an amount of EUR 3,000 is regarded as the upper limit in main proceedings. Anything significantly above that requires a special, robust justification in the individual case – for example in instances of mass, systematic infringements or particular circumstances. For the one‑off sending of an advertising email, an amount in dispute of EUR 9,000 is simply excessive.

Cease‑and‑desist letters from lawyers: fees based on EUR 9,000 amount in dispute

Against this background, cease‑and‑desist letters in which a lawyer sets an amount in dispute of EUR 9,000 for one or a few unsolicited advertising emails appear highly questionable. Such a value is three times higher than the standard figure confirmed by the Court of Appeal and the Berlin Regional Court. The effect is obvious: legal fees rise significantly and the financial pressure on the recipients of the warning letter increases. This has little to do with the actual dangerousness of a single advertising email or with the settled case law in Berlin.

From a practical point of view, the impression arises that the aim is less to reflect the real scale of the interest in injunctive relief and more to maximise the amount in dispute. Companies should not be intimidated by such high figures, but should expressly contest them and refer to the current case law.

EUR 400 “damages” – on very shaky legal ground

In addition to injunctive relief and reimbursement of legal fees, the cease‑and‑desist letters also demand “damages” of EUR 400 for the unsolicited email. This, too, is highly doubtful in legal terms.

The Federal Court of Justice has recently made it clear that unlawful email advertising does indeed give rise to a claim for injunctive relief, but does not automatically lead to a claim for (non‑material) damages. A concretely substantiated, quantifiable loss must be demonstrated. Mere annoyance at an advertising email or the minimal effort required to delete it is usually not sufficient.

Flat‑rate claims for EUR 400 without further justification and without a concrete presentation of an individual loss therefore run counter to this case law. In many cases they are not enforceable and – especially in combination with an excessive amount in dispute – can be understood as yet another attempt to increase payment pressure.

Lawyer acting in his own case – no entitlement to a fee for legal services

It is particularly problematic that a lawyer is issuing cease‑and‑desist letters “in his own case”. In its judgment of 12 December 2006 (case no. VI ZR 175/05) on unsolicited telephone advertising, the BGH held that a lawyer can, as a rule, not claim reimbursement of legal fees in straightforward cases if he can handle the matter himself without difficulty. In essence, the court stated that the immediate involvement of a lawyer is not necessary “if he himself has the specialist knowledge and experience needed to deal with the specific loss event”.

Applied to cease‑and‑desist letters in a lawyer’s own matter, this means: even if a claim for injunctive relief exists in principle, an additional, fully recoverable legal fee for the warning lawyer is by no means a given and should be expressly contested with reference to the BGH case law.​

What those affected should do

If your company has received a cease‑and‑desist letter from a lawyer acting in his own case for allegedly unsolicited email advertising, in which an amount in dispute of EUR 9,000 and damages of EUR 400 are claimed, you should note the following:

• Do not sign or pay in haste. Do not sign the enclosed cease‑and‑desist undertaking without review and do not simply transfer the amounts claimed.

• Obtain legal advice. Have the warning letter reviewed by a specialised lawyer – in particular the amount in dispute, the scope of the injunctive undertaking and the claim for damages.

• Contest the amount in dispute. Refer to the settled case law of the Berlin Court of Appeal and the current order on the amount in dispute issued by the Berlin Regional Court, which confirms EUR 3,000 for a single advertising email.

• Reject the flat‑rate damages claim. The demand for EUR 400 in damages is by no means firmly established in law and can be contested with reference to the BGH case law.

• If appropriate, submit a modified cease‑and‑desist undertaking. If a claim for injunctive relief exists in principle, it is often advisable to submit a modified undertaking that reasonably narrows the wording of the injunction but does not recognise excessive payment claims.

Conclusion

Yes, unsolicited email advertising is unlawful and not a trivial matter. Anyone who sends emails without consent risks claims for injunctive relief and costs. But the courts in Berlin have set clear guardrails: for a single advertising email, the amount in dispute in main proceedings is EUR 3,000, and in preliminary‑injunction proceedings EUR 2,000. Inflated amounts in dispute of EUR 9,000 and flat‑rate demands for EUR 400 in “damages” clearly exceed these limits.

Companies should therefore not be cowed by such cease‑and‑desist letters but should be aware of – and make use of – their options for defence. Where unjustified payments have already been made, it should be examined whether they can be reclaime

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Indirect Interferer Liability and the Limits of the DSA

1. Introduction

Fake profiles on social networks are no longer a marginal phenomenon; they increasingly affect public figures, companies and institutions. They interfere with core personality rights and confront civil courts with the task of fitting classic instruments such as section 1004 German Civil Code (BGB) by analogy, section 823 BGB, section 12 BGB and sections 22, 23 German Art Copyright Act (KUG) into a liability regime shaped by the Digital Services Act (DSA).

A recent decision of a higher regional court on fake profiles clarifies the liability of social media providers as indirect interferers and shows that the DSA does not undermine the enforceability of civil-law injunctions.

2. Legal Framework at a Glance

2.1 General Right of Personality and the Basic Law

The general right of personality is derived as an “other right” within the meaning of section 823(1) BGB from Article 2(1) in conjunction with Article 1(1) of the German Basic Law (GG). The use of a person’s name, image and biographical details in a fake profile interferes with their social reputation, their self-presentation and their informational self-determination.

Fake profiles that falsely create the impression that the account is operated by the person concerned themselves, or at least with their approval, are therefore qualified as an interference with the general right of personality.

2.2 Right to a Name under Section 12 BGB

Section 12 BGB protects the right to one’s own name, in particular against unauthorised use of the name that causes confusion about attribution. A fake profile operated under the civil name or a characteristic name of the person concerned will typically fulfil these conditions if third parties gain the impression that the person stands behind the profile.

The mere attribution of a profile to a person in the eyes of users is sufficient to trigger the protection of section 12 BGB, provided the appearance of a genuine, authorised profile is created.

2.3 Right to One’s Image (Sections 22, 23 KUG)

The right to one’s own image under sections 22, 23 KUG generally requires the consent of the depicted person. If a photo is used in a profile without consent and this profile impersonates the person, this usually does not fall under any privileged form of use (such as depiction from contemporary history, art or satire).

If photographs of a person are used in the context of an apparently authentic profile, this impairs their self-determination over their own presentation online and violates the right to one’s image.

2.4 Section 823(1) BGB and Section 1004 BGB by Analogy

Section 823(1) BGB acts as a general tort provision covering personality, name and image rights as protected “other rights”. Section 1004 BGB is applied by analogy to establish a strict (fault-independent) claim for injunctive relief against future interferences.

Those affected can assert claims for injunctive relief against the platform operator when the operator fails to act despite being aware of the infringing content. In practice, the claim is based on a combination of sections 1004, 823(1) BGB in conjunction with Articles 1(1) and 2(1) GG, section 12 BGB as well as sections 22, 23 KUG.

2.5 Interaction with the DSA

The DSA regulates liability privileges and due diligence obligations of hosting service providers, but it does not displace national civil law. It does not impose a general monitoring obligation, but it does require platforms to act expeditiously once they become aware of illegal content.

Article 6(4) DSA makes it clear that courts in the Member States remain entitled to issue injunctions that also extend to future identical or essentially similar infringements. National civil law – in particular sections 823, 1004 BGB, section 12 BGB and sections 22, 23 KUG – therefore continues to apply and is framed, but not replaced, by the DSA.

3. Indirect Interferer Liability of the Platform

3.1 Concept of Indirect Interferer Liability

A person is liable as an indirect interferer (mittelbarer Störer) if they are not a direct perpetrator or participant but nevertheless contribute to the infringement in a deliberate and adequately causal manner and breach reasonable duties of inspection. It already suffices that they support or exploit the actions of an independently acting third party if they had both a legal and factual possibility to prevent the infringement.

Liability must not be expanded boundlessly to third parties; therefore, it presupposes a breach of duties of conduct, in particular duties of inspection. Their scope is determined by what is reasonable in the circumstances of the individual case.

3.2 Triggering of Duties of Inspection

Duties of inspection arise as soon as the person concerned lodges a complaint that is sufficiently specific so that the infringement can be affirmed without in-depth legal or factual examination. In the context of fake profiles, this is generally the case where:

• the specific profile is identified by URL and screenshot,
• the identity theft (name, photos, professional details) is described,
• the absence of consent is clearly stated.

If the affected person also points out that their name and likeness are being used in such a way that the profile appears authentic, a manifest violation of personality, name and image rights is evident. The platform must then investigate and take action.

3.3 Application to Social Media Platforms

Social media providers supply the technical infrastructure and enable users to create profiles. They are therefore not the direct perpetrators of the infringement but can be held liable as indirect interferers if they fail to act after being put on specific notice.

If a platform does not respond, or only responds after undue delay, to a substantiated notice, it breaches its duties of inspection and action. From that point on, the DSA’s liability privilege no longer applies and an injunctive claim against the platform operator arises.

4. Scope of the Injunction: Identical and Essentially Similar Fake Profiles

A particularly relevant question is whether the injunction is limited to the specific URLs identified or also covers future identical or essentially similar accounts.

The prevailing doctrinal approach is that the injunction is not limited to the specific URL but captures the infringing conduct in its typical form: the specific infringing act and all essentially similar acts are prohibited. For platform operators this means that they must:

• block or delete the concretely reported fake accounts, and
• prevent future identical or at least essentially similar fake profiles under a different web address.

A new prior complaint by the affected person is not always necessary if the new profiles are identical or essentially similar in content and can be recognised as repetitions of the prohibited infringement without requiring a fresh legal assessment.

5. Risk of Repetition, Urgency and Interim Relief

The first infringement gives rise to a factual presumption of a risk of repetition. This presumption is generally rebutted only by a serious, usually contractual and penalised, cease-and-desist undertaking or by other circumstances that eliminate the risk of repetition.

The mere deletion of the specific fake profiles without a cease-and-desist declaration is not sufficient, particularly since new fake accounts can be created at any time by third parties. Platforms that also take the view that they are not obliged to provide more far-reaching undertakings reinforce the impression that the risk of repetition continues to exist.

Urgency (Verfügungsgrund) is regularly assumed in cases of online personality rights infringements because information spreads and entrenches quickly. Even if the specific profiles have been deactivated by the time of the court’s decision, urgency may persist where the danger of essentially similar infringements is real and only the platform has the technical means to prevent them effectively.

6. Practical Recommendations for Those Affected

6.1 Immediate Steps vis-à-vis the Platform

Those affected should first use the reporting tools provided by the platform and carefully document the infringement. In particular, the following are helpful:

• screenshots of the fake profile showing URL, date and content,
• documentation of the identity features used (name, photo, professional details) and comparison with their official online presence,
• use of specific reporting forms for identity theft or account impersonation,
• precise description of the infringement (identity theft, unauthorised use of name, unauthorised use of image),
• documentation of all platform responses (email confirmations, ticket numbers, response times).

The more concrete the notice, the easier it is to establish an infringement that is “readily apparent” to the platform.

6.2 Involving Legal Counsel and Sending a Warning Letter

If the platform does not respond or only does so after delay, legal advice should be sought. A warning letter with a deadline for deletion and a cease-and-desist demand sets out the legal basis and prepares the ground for court proceedings.

The warning letter should:

• refer to the infringed rights (personality, section 12 BGB, sections 22, 23 KUG),
• describe the specific infringing conduct with reference to the preserved evidence,
• formulate a specific claim for injunctive relief that also covers essentially similar infringements.

In practice, platforms do not always issue a contractual cease-and-desist undertaking, but a court order granting injunctive relief already exerts significant pressure and enables the enforcement of penalties (order measures) in case of violations.

6.3 Interim Relief: Preliminary Injunction

Given the dynamic nature of social media, interim relief plays a key role. In addition to the claim itself, urgency is a crucial condition.

An application for a preliminary injunction should:

• rely on section 1004 BGB by analogy in conjunction with section 823 BGB, section 12 BGB and sections 22, 23 KUG,
• demonstrate the platform’s inaction or delay despite knowledge,
• formulate the requested injunction in such a way that not only the specific URLs but also identical and essentially similar fake profiles are covered.

Courts tend to grant interim relief promptly in clear cases of identity rights violations in order to provide effective protection.

6.4 Strategic Scope of the Injunctive Claim

In practice, it is advisable not to request a completely abstract, general prohibition of “any fake profiles”, but rather to link the claim to the specific infringement and extend it to essentially similar variants. This improves the specificity and enforceability of the injunction.

A typical injunction:

• refers to the specific profiles complained of, and
• extends to profiles that are identical or essentially similar to them, even if they are available under a different URL.

In this way, the scope of protection is sensibly broadened without turning the injunction into an undefined general monitoring obligation for the platform.

7. Relevance for Platform Operators and Compliance

For social media companies, the decision highlights the need to establish clear internal processes for dealing with identity abuse. These include:

• easily accessible and functional complaint channels,
• legally trained teams capable of assessing identity violations,
• technical systems that can detect identical or essentially similar profiles (for example, via image, name or pattern recognition),
• defined response times and documented takedown procedures.

If such structures are lacking, platforms face not only injunctions and penalties but also lasting reputational damage and potentially stricter regulation. The current line of case law makes it clear that platforms cannot hide behind liability privileges under the DSA when they fail to act promptly in the face of obvious identity rights infringements.

Our Law Firm’s Recommendation

Our law firm has specialised for many years in personality rights, media law, IT and data protection law, and represents clients throughout Germany in cases involving fake profiles and other unlawful social media content.

Our specialised lawyers have extensive experience with preliminary injunctions and court proceedings against major platform operators, as well as with out-of-court takedown procedures. In numerous successful cases, we have obtained the deletion of unlawful profiles, far-reaching injunctions (including for identical and essentially similar content) and, in individual cases, financial compensation.

Thanks to our focus on the DSA, the GDPR and platform regulation, we develop a tailor-made strategy for each case – from securing evidence at the outset through to the consistent enforcement of claims in court. Individuals and organisations who wish to defend themselves against fake profiles, identity theft or reputation-damaging content benefit from this concentrated expertise and our many years of forensic experience.

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Guiding principles of the author

1. in the context of the required balancing of the interference with the personal rights of the
of the person concerned and the public’s interest in information, current reporting and thus the
reporting and thus the information interest deserves priority in any case if the journalistic
priority if the journalistic due diligence requirements are met.

2. an allegation of fact is to be assumed if the content of the statement
content of the statement is accessible to objective clarification according to the understanding of the average

and, as something that has happened, is in principle open to proof. In contrast
is an expression of opinion if the statement is characterized by the elements of an
statement is characterized by the elements of opinion, support or opinion.

3. the application of an appeal provision may be omitted in individual cases if
it is not compatible with the special features and character of the summary proceedings. Insofar as
the view is taken that the provision should not be applied in interim legal protection
not be applied because the urgency of the proceedings means that it is more likely
than in normal legal proceedings that facts are not presented immediately,
be it that in the time available the information is not provided at all or not
the information could not be obtained at all or not with the material necessary for substantiation, or
the relevance of the fact was not recognized due to time pressure, this can be taken into account by
be taken into account by the fact that the element of negligence within the meaning of sec.
within the meaning of section 531 (2) no. 3 ZPO is to be interpreted more narrowly than in the main proceedings.
proceedings.

2. The role of the press in reporting on pending criminal cases and trials is a complex one, fraught with legal, ethical, and societal implications. Journalists serve as a crucial conduit between the judicial system and the public, ensuring transparency and accountability. However, they must balance this responsibility with the potential for prejudicing proceedings and infringing on defendants’ rights. This tightrope walk necessitates a nuanced approach to journalism that respects the principles of justice while fulfilling the press’s role as a watchdog.

The Role of the Press

At its core, the press plays an indispensable role in the criminal justice system. By reporting on pending cases and trials, journalists:

1. Inform the Public: Providing the public with information about legal proceedings helps citizens understand how the justice system works and ensures transparency.
2. Promote Accountability: Press coverage can bring attention to misconduct or corruption within the judicial system, prompting necessary reforms.
3. Foster Public Discourse: Engaging the public in discussions about high-profile cases can lead to broader conversations about law, order, and social justice.

Legal and Ethical Constraints

Despite these benefits, there are significant legal and ethical constraints that journalists must navigate when reporting on pending criminal cases.

1. Presumption of Innocence: Central to the criminal justice system is the principle that an individual is presumed innocent until proven guilty. Media coverage that appears to assume guilt can prejudice the public and potential jurors, undermining this fundamental right.
2. Fair Trial Rights: Extensive pre-trial publicity can influence the opinions of jurors, jeopardizing the defendant’s right to an impartial jury. Courts often issue gag orders or limit media access to mitigate this risk.
3. Contempt of Court: In some jurisdictions, publishing certain details about ongoing cases can be considered contempt of court, potentially leading to legal repercussions for the journalist and the media outlet.

Striking a Balance

To navigate these challenges, journalists should adhere to best practices that balance the public’s right to know with the rights of the accused.

1. Accuracy and Objectivity: Reporting should be factual, devoid of speculation, and free from bias. Journalists must strive to present a balanced view, giving equal weight to the defense and prosecution’s perspectives.
2. Respect for Privacy: Sensitive information, such as the identities of victims or witnesses, should be handled with care to protect their privacy and safety.
3. Avoiding Prejudicial Language: Language that implies guilt or sensationalizes the case should be avoided. Neutral terminology helps maintain objectivity and fairness.
4. Compliance with Legal Restrictions: Journalists must be aware of and comply with legal restrictions, such as reporting bans or gag orders, to avoid interfering with the judicial process.

The Impact of Digital Media

The advent of digital media has amplified the challenges associated with reporting on pending criminal cases. The 24-hour news cycle, social media platforms, and citizen journalism have intensified the dissemination of information, often bypassing traditional editorial controls. This can lead to the rapid spread of misinformation and unverified details, further complicating the balance between public interest and fair trial rights.

To mitigate these issues, media organizations should invest in training journalists on legal and ethical standards, promote responsible journalism practices, and engage in self-regulation to uphold the integrity of their reporting.

Conclusion

Press reporting on pending criminal cases is a critical yet delicate task. Journalists must navigate a landscape of legal and ethical constraints to ensure that their coverage does not compromise the fairness of judicial proceedings. By adhering to principles of accuracy, objectivity, and respect for legal boundaries, the press can fulfill its role in promoting transparency and accountability while safeguarding the rights of the accused. In an era of rapid information dissemination, maintaining this balance is more challenging and essential than ever.

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