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