In the discussion about so-called cold calls in direct marketing, the point is often overlooked that the B2B customer’s express consent to these calls is not necessarily required for telephone customer acquisition in the B2B sector. Cold calls are calls for advertising purposes that were not initiated by the called party or for which the called party has not given their prior consent.
What is the legal situation regarding cold calls?
Unsolicited calls to consumers and companies for advertising purposes are often annoying for the person called and can have the character of a surprise call.
In Section 7 of the Unfair Competition Act (“UWG”), the legislator has regulated the cases of unreasonable harassment, in particular the cases in which unreasonable harassment is always, i.e. without exception, to be assumed in advertising (Section 7 (2) UWG), and the cases in which this is exceptionally not the case (Section 7 (3) UWG).
According to Section 7 (2) No. 1 UWG, contacting companies by telephone for advertising purposes is only permitted if at least presumed consent can be assumed. This represents a small but relevant difference to telephone advertising to consumers and generally to any type of advertising to consumers or companies using an automatic calling machine, fax machine, text message or email, because with all these types of contact, advertising is only permitted if express consent has been given.
What does case law say?
Even if the characteristic of the presumed consent of the called party to promotional telephone calls in B2B is interpreted restrictively by case law, this opens up an additional area of application for direct marketing by telephone, which may well be relevant in practice. The Federal Court of Justice (“BGH”) has ruled that a company in the B2B sector must accept telephone advertising if this “(...) still corresponds to its interests to such an extent that the associated nuisance appears to be acceptable” (BGH, judgment of February 5, 2004 – I ZR 87/02 – Telephone advertising for additional entry).
The use of voicebots
Under the premise that advertising calls in the B2B sector may be permitted if at least presumed consent has been given, the use of voicebots appears to be an attractive and effective marketing tool. Voicebots are digital telephone agents controlled by artificial intelligence (“AI”). In dialogue with the called customer, the voicebot converts the speech into machine-readable text in real time via transcription, compares customer inquiries with the knowledge database and plays out an AI-optimized response to the customer.
The decisive question that now arises for the area of B2B telephone acquisition is whether the contact of a voicebot with a trader initiated by an AI and based on presumed consent falls under the “privilege” of Section 7 para. 2 no. 1 UWG, or in other words: Is a call from a voicebot to a business customer, which is able to answer inquiries individually, so to speak dialogically, a telephone call within the meaning of Section 7 (2) No. 1 UWG or rather the use of an automatic calling machine within the meaning of Section 7 (2) No. 2 UWG, so that in any case an express, prior consent of the customer would be required?
A telephone call within the meaning of the UWG is understood to be an individual verbal communication initiated or initiated by the advertiser by telephone (see Köhler/Bornkamm/Feddersen/Köhler, 43rd ed. 2025, UWG Section 7 para. 142). This form of individual communication must be distinguished from calls made using automatic calling machines (so-called voice mail), which may not be made to traders without their prior consent simply because of the literal reference in Section 7 (2) No. 2 UWG – and this is probably the decisive difference.
There are currently no clear statements in case law as to where the focus of an AI-based voicebot lies, whether in the automated voice reproduction of pre-produced announcements (corresponding to an automatic calling machine) or in the individual voice interaction of the voicebot with the called customer.
Ultimately, equating voicebot telephone calls with calls from human telephone agents within the meaning of Section 7 (2) No. 1 UWG seems appropriate at least if the voicebot is able to communicate with the customer in real time and individually in a dialog using artificial intelligence. In this case, equating it with a telephone call from a human telephone agent is justified due to comparability. Consequently, this means that AI-controlled, software-supported calls from a voicebot fall under Section 7 (2) No. 1 UWG and can also be made in B2B on the initiative of the advertising company (so-called outbound call), provided that the presumed consent of the called party can be assumed.
Outlook: AI transparency obligations from August 2, 2026 under the AI Act
From August 2, 2026, Art. 50 of the AI Regulation will oblige providers and operators of AI systems to explicitly inform users that they are interacting with an AI within the framework of a very differentiated regulation and in accordance with risk classifications, unless this is really obvious. Chatbots and AI-generated content in particular must be clearly identified as such. This obligation includes both informing users and designing the systems to enable conscious and informed interaction.
The regulations go beyond the general transparency obligations of the UWG and provide a specific basis for avoiding misleading information by omission. However, it remains to be seen whether and to what extent competitors can issue warnings for breaches of these obligations. Until clarification by case law or supplementary provisions of European or national legislation, the enforcement of these transparency obligations could still harbor uncertainties for providers and operators.
