The long-distance bus provider Flixbus suffered a severe legal defeat before the Vienna Higher Regional Court. The court declared the previous practice that after entering the e-mail address during the booking process, advertising was sent in addition to the transmission of the tickets, to be inadmissible. The verdict is not yet legally binding.

The association for consumer information had sued Flix SE on behalf of the Austrian Ministry of Social Affairs. After entering the e-mail address, the clause appears that the e-mail address will be used to send the customer the booking confirmation and additional travel-related offers. In order to object to receiving these e-mails, customers must send a separate message to Flix SE. The Higher Regional Court (OLG) Vienna upheld the action for an injunction. The verdict is not yet legally binding.

Flix SE is the largest operator of long-distance bus connections in Europe. Furthermore, one is also active in Germany as a private railway company. The parent company has been appearing as “Flix” for some time. The “Flixbus” brand is used for the bus service and the train tickets are marketed as “Flixtrain”.

According to the Association for Consumer Information, entering an e-mail address is mandatory for online bookings. The following text can be found under the input field for the e-mail address: “We use your e-mail address to send you the booking confirmation and additional travel-related offers. You can object to receiving these emails at any time free of charge. To do this, send an email to 'unsubscribe(at)flixbus.com'.”

The Higher Regional Court of Vienna upheld the complaint by the VKI and confirmed several violations of the law. There is no legally compliant prior consent to direct advertising. Consent must be given voluntarily for a specific case, in an informed manner and expressly, i.e. through a clear affirmative action. However, this is not the case with the present clause.

Prior consent for the sending of electronic mail for direct marketing purposes is only not necessary if this message is for direct marketing of your own similar products or services. However, the present clause not only includes the customer's consent to the sending of offers from Flix SE itself, but also from third parties. In addition, the clause does not contain a sufficient restriction to similar products or services.

In addition, when entering their e-mail address, travelers are not given the opportunity to easily refuse the mailings in question at the time the data is collected or the contract is concluded. To do this, customers would have to leave the order screen during the booking process in order to first send an e-mail objecting to the use of their data for electronic direct advertising.

“A similar clause is currently still being used in the booking process on the Flix SE website. Flix SE can still appeal to the Supreme Court, but we are confident that we will win this case," says Beate Gelbmann, head of the lawsuits department.