Unsolicited marketing is not limited to traditional newsletters or cold calling. Violations of Section 174 of the Austrian Telecommunications Act (TKG) may also arise in the course of ordinary business communications—particularly where contractual or onboarding emails are combined with promotional content.
A recent decision by the Austrian Federal Administrative Court (BVwG, May 24, 2024, W271 2269889-1) highlights these risks.
Advertising in Welcome Emails as Unlawful Spam
In the underlying case, a property management company sent an email following the initiation of a contractual relationship, enclosing administrative documents. In addition to the relevant contractual materials, the email included promotional content—partly for the company’s own services and partly for third-party providers (e.g., electricity, internet, insurance).
The recipient had not provided consent to receive such marketing communications.
The Austrian Telecommunications Authority (Fernmeldebüro) imposed an administrative fine, which was subsequently upheld by the Federal Administrative Court.
Broad Interpretation of “Advertising” Under Section 174 TKG
The court made several key clarifications:
- The concept of “advertising” must be interpreted broadly.
- Attachments form part of “electronic mail.”
- Any encouragement to enter into a commercial transaction is sufficient.
- It is irrelevant whether the promotion concerns the sender’s own services or those of third parties.
As a result, even ostensibly “service-oriented” supplementary information may fall within the statutory prohibition on unsolicited marketing.
No Implied Consent Through Silence or Prior Contact
Of particular practical importance is the court’s position on consent:
- The absence of an objection does not constitute consent.
- An existing business relationship or pre-contractual contact is insufficient.
- There is no exemption for B2B communications.
Valid consent must be obtained in advance, be informed, and be unambiguous—consistent with the EU law standard for consent.
Enforcement by the Telecommunications Authority
The Austrian Telecommunications Authority (Fernmeldebüro) is responsible for enforcing Section 174 TKG. It may impose fines, in particular, where:
- marketing emails are sent without prior consent,
- promotional content is included in otherwise permissible communications,
- third-party advertising is disseminated without a legal basis, or
- cold calling is conducted without consent.
Notably, even a single email may suffice to trigger enforcement action.
Delineation from Data Protection Law
In parallel, the Austrian Data Protection Authority may have jurisdiction—but only where there is an additional violation of the General Data Protection Regulation (GDPR).
Typical scenarios include:
- unlawful collection of email addresses,
- lack of a legal basis for processing, or
- use of personal data for marketing purposes without justification.
Accordingly, responsibilities must be distinguished:
- Telecommunications Authority → unlawful transmission of marketing communications (TKG)
- Data Protection Authority → unlawful processing of personal data (GDPR)
Practical Implications
The decision highlights several common risk areas:
- combining contractual documents with marketing content,
- sending welcome emails that include promotional offers,
- incorporating partner or third-party services,
- failing to clearly separate informational and marketing communications.
These risks are particularly acute in standardized processes such as onboarding workflows, CRM systems, and automated email campaigns.
Conclusion
The decision confirms the strict approach under Section 174 TKG: email marketing without prior consent is unlawful—even where embedded in otherwise permissible communications.
From a compliance perspective, contractual communications and marketing content must be clearly separated. Failure to do so may result in administrative fines imposed by the Telecommunications Authority.
Questions on spam regulations or TKG compliance?
We advise on legally compliant email marketing, customer communications, and compliance processes, and represent clients in proceedings before the telecommunications and data protection authorities.
Feel free to contact us at office@geuer.at or by phone at +43 1 438 00 72.