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Illegal advertising emails despite double opt-in and confirmation request?

Email marketing in Germany. Legal, illegal, immaterial?
Email marketing in Germany. Legal, illegal, immaterial?

Involving relatively little effort and reasonable cost, email is still the medium used by advertisers such as agencies, online retailers and service providers to keep a variety of existing customers up to date about their products and services. An advertiser can also maximise reach, for example by using public directories, crawling or purchasing email addresses. The latter is especially useful for acquiring new customers; in addition to cold calls, emails are a popular way of reaching potential buyers. However, advertisers should refrain from simply bombarding people; in fact there are a number of rules to observe if they don’t wish to end up with nasty customer complaints, written warnings or even information requests from the local state data protection authorities as a result of unsolicited and unwanted email advertising.

Keep in mind compliance with the Federal Data Protection Act and the Act against Unfair Competition – Respect the law, even if it’s a challenge

Newsletters and advertising emails have to be designed in an appealing way, and also highly relevant to the recipient, if they are to secure high opening rates and conversions and, ultimately, be profitable. Modern technologies, such as big data customer analytics, are helpful when it comes to driving up conversion rates. But all modern technologies have their pitfalls. In the battle for customers, anyone who uses email marketing cannot ignore, above all, the legal provisions of the Federal Data Protection Act and the Act against Unfair Competition (UWG). As far as email addresses are concerned, it must generally be assumed that such contact information constitutes personal data. Many email addresses are structured according to the simple pattern firstname.lastname@abc.de, thus making it easy for anyone using the information to identify the person most probably behind an address.

With this in mind, the following principle of data protection also applies to email marketing: Advertisers may only use the information for their own (advertising) purposes with the express consent of the person concerned.

As regards competition law, the Act against Unfair Competition (UWG) also stipulates that advertisers must obtain the express consent of recipients of advertising sent via electronic mail, so that recipients are not exposed to unsolicited and unwanted advertising. If advertising is sent without such consent, then claims may be asserted, under competition law, against the advertiser, who risks receiving a written warning and being liable for any costs incurred.

So in order to protect themselves from such legal consequences, it is especially important that the advertiser ensures that the person for whom the advertising is intended has actually given valid consent to receiving advertising via email. This is where a documentation process known as the ‘double opt-in’ method comes in.

The idea behind the double opt-in method

Often used for electronic competitions and newsletter marketing, the double opt-in method basically means a user having to verify their email address twice in order to voluntarily clear it for receiving advertising.

Common misconception: The method is used only to verify whether consent has already been granted; it doesn’t replace consent itself!

If a person interested in advertising, newsletters or competitions enters their personal information via a special online form, this triggers an email which is sent to the email address they have provided. In it they are asked to confirm that they consent to receiving promotional material via email in future.

The double opt-in method rules out the misuse of personal data in the vast majority of cases, because the person who has access to the inbox of the email address provided is required to consent to the sending of advertising by clicking on a link in a separate email. Problems only arise in cases where a third party has gained access to the email inbox.

So in this way it can usually be ensured that the person who provides their information in order to receive advertising also consents to receiving that advertising. The consent of the recipient is thus correctly documented and can, in cases where it needs to be proved that the advertising recipient has indeed granted their consent, be used as evidence of their consent to receiving promotional material via email. In terms of evidence, therefore, this significantly improves an otherwise complicated situation for advertisers, although even this method cannot be used to achieve absolute legal certainty.

Contradictory case law

While until now advertisers have, to be on the safe side, used the double opt-in method as a means of demonstrably documenting the consent of new or potential customers, in a 2012 ruling (judgement from 27.9.2012, ref.: 29 U 1682/12) the Oberlandesgericht (Higher Regional Court) in Munich decided that even sending the first confirmation email amounted to spam, meaning it constituted unlawful advertising and recipients would be within their rights to respond with a written warning.

In the Munich case, it simply could not be determined with certainty that the recipient of the advertising had actually subscribed via a registration form to receiving newsletters. The confirmation email which the company then sent to the future recipient of the newsletter asked them to confirm their consent and their email address again. The judges of the Oberlandesgericht classified this email itself as advertising – despite the fact that the email’s design and contents were neutral and free of advertising: dura lex, sed lex.

However, in its ruling from May of this year, (judgement from 15.5.2014, ref.: 13 U 15/14), the Oberlandesgericht in Celle did not align itself with the view of the court in Munich, instead taking the concerns of the advertising industry and the urgent needs of e-commerce very seriously. The judges in Celle explained that the double opt-in method can in principle be regarded as a practically relevant way of proving people’s consent to receiving email advertising. The court also tends not to regard the sending of a confirmation request as unlawful advertising according to the UWG. With their practical ruling, the Celle judges have not restricted email marketing activities even further, allowing advertisers plenty of scope for successful marketing.

It should still be noted, however, that conflicting judgements from at least two higher regional courts do exist, and advertisers only have limited influence as to which court may be used to sue them for unauthorised email advertising.

Nevertheless, advertisers should always bear in mind these 5 carefully considered tips for their email marketing campaigns:

Practical tips:

  1. As a rule, consent must be obtained from recipients of email advertising (company news, advertising, newsletters, competitions etc.)
  2. Consent should be documented using the double opt-in method (record of when registration occurred, user’s IP address, content of confirmation email, when confirmation occurred)
  3. Every advertising email, but also the confirmation mail, should point out that the recipient may unsubscribe from the mailing list at any time
  4. An opt-out link should be included in the respective advertising mail
  5. Despite the ruling in Celle, it is recommended that confirmation emails be kept largely neutral and free of advertising.

We would be happy to help you implement your marketing activities, for example via email, telephone or an online campaign, and can develop legally and practically feasible solutions with you.

The Leipzig-based law firm Spirit Legal advises domestic and foreign businesses with an international focus. Our core consulting expertise is in the areas of e-commerce, corporate, competition, trademark, IT and data protection law. When it comes to legal matters, our industry experience makes us the ideal specialists for start-ups, travel companies and the hotel industry.

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