Cease‑and‑desist letters from lawyers over email advertising: Inflated amount in dispute and questionable damages

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