Cold Calling (also referred to in German as Telephon-Aquise)

The initiation of business by means of an unsolicited telephone call or letter via fax and the Internet (such as e-mail; electronic mail or SMS; short message: an electronic memo sent over a cellular network from one cell phone to another), which is prohibited in Germany, especially in securities trading; see § 36b WpHG. – In any case, cold calling represents an intrusion into the privacy of the called party, which forces the promotion of goods and services on the called party at a time determined exclusively by the advertiser. The called party can usually only avoid this by violating the general rules of common courtesy. – In addition, cold calling represents an impairment of the customer’s freedom of choice. As a rule, it is used to achieve a surprise effect on the called party and to exploit this situation to conclude a contract immediately. The callers are usually people who work on a high commission basis and are specially trained in the art of telemarketing (phonemanship). They are also specially trained to avoid critical questions from the potential customer. By means of test calls (mystery calls), the effect, i.e. the chances of success of a later mass call action, is estimated in advance with a few test persons. – Incidentally, unsolicited calls are also prohibited if they do not involve any specific business but are only intended to provide a general introduction to the company. The supervisory authorities punish such violations with heavy fines. Of course, national supervisory authorities have so far been powerless against such calls from offshore financial centers. – See Rip-off, Advance Letter, Call Announcement, Complaint Center, Relationship Maintenance, Blind Pool, Blue-sky laws, Call Center, Canvassing, Daimonion, Steam Room, Darkrooming, Deuteroscopy, Financial Vultures, Frontrunning, Secret Tip, Money Sucker, Founding Swindle, Collection Agency, Internet Offers, Cold Call, Mail Shot, Shanghaied Money, Advertising Restrictions, Remittance Services. – Cf. 2004 Annual Report of BaFin, p. 75 (advertising letter to children), p. 123 (reference to BaFin’s general ruling based on Section 36b of the German Securities Trading Act; sanctions by special audit), 2005 Annual Report of BaFin, pp. 132 f. (fine proceedings), BaFin Annual Report 2006, p. 135, p. 137 (cases uncovered), BaFin Annual Report 2007, p. 142 (revocation of permission), pp. 145 f. (clarification of general ruling from 1999 regarding cold calling; focus examinations), pp. 147 (fine proceedings), BaFin Annual Report 2011, p. 177 f. (contractually bound intermediaries engaged in cold calling, BaFin issues permit revocation notice), BaFin Annual Report 2012, p. 167 (BaFin imposes fine on an institution for violating the ban on cold calling), and the respective BaFin Annual Report, chapter “Supervision of Banks, Financial Service Providers, and Payment Institutions.”

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University Professor Dr. Gerhard Merk, Dipl.rer.pol., Dipl.rer.oec.
Professor Dr. Eckehard Krah, Dipl.rer.pol.
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