Controllers are currently increasingly receiving lawyer’s letters from Cyfire Rechtsanwaltsgesellschaft mbH asserting data protection claims relating to allegedly unlawful advertising emails, newsletter tracking or incomplete responses to access requests under Article 15 GDPR. The letters often demand damages, legal fees, information and the submission of a cease and desist declaration with a contractual penalty clause. These demands should not be complied with prematurely, but should be carefully reviewed from a legal perspective.
1. What are Cyfire letters typically about?
In the letters available to us, the focus is primarily on the following points:
- Email advertising and newsletter registrations
- Evidence of consent, in particular double opt in records (confirmation email to verify newsletter registration)
- Compliance with the requirements for advertising to existing customers
- Tracking, in particular open and click tracking
- Rights of access under Article 15 GDPR
In some cases, it is alleged that advertising emails or tracking technologies were used without sufficient consent. In addition, access is requested regarding data sources, legal bases, recipients, tracking information and technical evidence.
In practice, the letters often do not merely assert individual payment claims. Frequently, the question arises as to whether a cease and desist declaration should be submitted and how narrowly it must be worded. This entails potential risks: an overly broad cease and desist declaration may create long term obligations, risks of contractual penalties and significant follow on problems for marketing activities.
2. Initial response: secure deadlines, but avoid premature admissions
Affected companies, organisations and public administrations should take such letters seriously and record the deadlines set. At the same time, they should avoid making payments, signing a pre-formulated cease and desist declaration or making extensive factual admissions without prior review.
A structured approach is advisable:
- document receipt
- note deadlines
- secure the relevant communication records
- review newsletter and CRM systems
- export double opt in logs / records demonstrating the requirements for existing customer advertising
- clarify internal responsibilities
At the same time, it should be assessed whether further similar cases may arise and whether short term technical or organisational measures are required.
3. Key points for legal assessment
- Is the email actually advertising? The concept of advertising is interpreted broadly by the courts. Nevertheless, it must be assessed in each individual case whether the specific message had an advertising character or served contract performance, association communication or factual information purposes.
- Was valid consent obtained? For newsletters and email marketing, evidence of valid consent is crucial. In particular, the content, timing, source and documentation of the double opt in are decisive. It is therefore not only relevant whether consent existed, but also whether it can be proven in the event of a dispute.
- Does the exception for existing customer advertising apply? Under narrow conditions, email advertising to existing customers may be permissible. In particular, the requirements of Section 7(3) UWG must be taken into account. Not every previous customer relationship is sufficient; the requirements are strict.
- Was the tracking permissible? Open and click tracking may be relevant both under data protection law and under the requirements of the German Telecommunications Digital Services Data Protection Act (TDDDG). The decisive factors are the specific technical implementation and the consent mechanism.
- Has the right of access been properly fulfilled? Access requests under Article 15 GDPR must be handled completely, within the applicable deadline and in a comprehensible manner. At the same time, there are limits, for example in the case of manifestly unfounded or excessive requests or where third-party rights are affected.
4. Cease and desist declaration: review with particular care
The most critical part of many warning letters is the requested cease and desist declaration. If a cease and desist declaration with a contractual penalty clause is submitted, an independent cease and desist agreement is created. In the event of subsequent breaches, contractual penalties may arise that can be significantly more economically burdensome than the original payment claim.
In many cases, it is therefore not advisable to sign the enclosed declaration without review. Depending on the facts of the case, options may include rejecting the claims, submitting a modified cease and desist declaration, providing a narrowly limited undertaking, reaching a settlement or deliberately defending the matter in contested court proceedings. Which strategy is appropriate depends in particular on the evidentiary situation, the risk of recurrence, the technical marketing processes and the economic interests of the companies, organisations or public authorities concerned.
5. Damages and costs: claims are not automatically justified
Claims for damages asserted under Article 82 GDPR and reimbursement claims for legal fees should likewise not be accepted without review. Case law imposes requirements regarding the substantiation and proof of compensable damage. In addition, it must be examined whether the costs asserted are reimbursable in principle and in amount, and whether the asserted matter values, fees and combinations of claims are convincing.
Particularly where demand letters appear to be sent in large numbers or on a standardised basis, it may also be necessary to examine whether objections to enforcement of the claims are available. This does not mean that every warning letter is unfounded. It does mean, however, that a differentiated review generally enables better outcomes than premature compliance with all demands.
6. Practical immediate measures
- secure the warning letter
- record deadlines
- secure sending history
- export evidence
- review systems
- review the pre formulated cease and desist declaration
- coordinate communication stategy
7. Our support
We support companies, organisations and public administrations in the prompt and legally sound assessment of data protection warning letters. This includes reviewing the claims asserted, assessing consent and tracking processes, developing an individual defence strategy, conducting correspondence with the opposing party and legally safeguarding future newsletter and marketing processes.
If you have received a warning letter from Cyfire Rechtsanwaltsgesellschaft mbH or a comparable data protection demand letter, you should seek legal advice promptly. An early review can help avoid unnecessary payments, excessive cease-and-desist obligations and follow-on disputes.
