03.02.2025
Email marketing without consent - what is allowed?
Newsletters are still very popular in online marketing. Sending newsletters by email is a cheap and fast way to promote your products and services. Many companies want to take advantage of this opportunity. But what are the legal requirements for contacting customers by email?
Content
- Advertising as unreasonable nuisance?
- Principle: No advertising without explicit consent
- Satisfaction surveys and inbox advertising
- Exception: Advertising to existing customers by e-mail
- What needs to be considered in relation to the GDPR?
- Feedback requests as permissible advertising for existing customers?
- What are the consequences of non-compliance?
- Practical recommendations
- So what should you consider before launching your email marketing campaign?
Your company has successfully built a high quality email list organically. Your email template is attractive. The text of your email campaign is catchy and relevant to your target audience. It seems like you have everything you need to launch your email marketing campaign.
However, before you start sending emails, it is important to check that they are legal from a competition and data protection perspective. It is now widely accepted that it is possible to contact customers by email for promotional purposes on the basis of prior express consent. However, many companies are unsure of what is and is not permitted in this area. We will show you what rights and obligations you have and what you need to consider when contacting potential customers for online marketing purposes in order to comply with German and European law.
Advertising as unreasonable nuisance?
Under Section 7(2)(2) of the UWG, e-mail advertising without prior express consent generally constitutes unreasonable harassment of the recipient. This applies regardless of whether the recipient is a private individual or a company.
Principle: No advertising without explicit consent
No advertising without express consent - that is the basic principle. Since the burden of proof for the existence of consent lies with the advertiser, the German Federal Court of Justice (BGH) has ruled that the mere registration of an email address on the sender's website ("single opt-in") is not sufficient (BGH, judgement of 10 February 2011 - I ZR 164/09). This is because misuse by unauthorised persons cannot be ruled out. In practice, the confirmation of the consenting person by means of the so-called double opt-in procedure has therefore become established. In this procedure, the consenting person receives an email after the transmission in which he or she must confirm his or her consent by clicking on a link.
Satisfaction surveys and inbox advertising
Satisfaction surveys or product recommendations in the signature line of an email also constitute advertising. According to the Federal Court of Justice, this also applies if the request for feedback or product recommendation is made in connection with a necessary communication with the customer, such as the sending of an invoice or a confirmation email (Federal Court of Justice, judgement of 10 July 2018 - VI ZR 225/17).
The consent requirement also applies when advertising that resembles a real email is displayed in an email inbox. Following a referral from the BGH, the European Court of Justice (ECJ) decided that this is an electronic mail - the corresponding legal term in Section 7 para. 2 no. 2 UWG (ECJ, judgement of 25 November 2021 - C-102/20).
Exception: Advertising to existing customers by e-mail
However, the law provides for an exception to this principle. § Under Section 7(3) of the UWG, companies may, under certain conditions, send e-mail advertising without express consent if the recipients of the e-mail are existing customers. The reasoning behind this is that someone with whom a business relationship exists is likely to be interested in other similar products and services and would like to be informed about them. For this to be the case, five conditions must be met:
In connection with the sale of a product or service
Although not explicitly stated in the wording of the provision, the law requires that there must already be a contractual relationship between the trader and the recipient of the email. A mere pre-contractual relationship, in particular the mere initiation of a contract, is not sufficient. For example, if someone has only asked for product information to be sent to them, or has only placed the goods in the shopping basket without completing the order, there is no business relationship. The mere creation of a customer account is also not sufficient under Section 7(3)(3) UWG.
The trader must have obtained the customer's address directly from the customer. It is not sufficient for the trader to have obtained the address from other sources or from third parties.
Advertising only for own similar goods or services
The biggest challenge for companies is usually the second requirement of Section 7(3) UWG. Only own goods or services that are similar to the product already purchased may be advertised. Case law is very strict when it comes to assessing what constitutes a similar product. In some cases, it is required that the products are 'interchangeable' or that they serve 'the same or at least a similar need or purpose'. For example, it would be permissible to email a customer who has ordered French red wine with an advertisement for red wine from New Zealand. Someone who has booked a hotel in the Spreewald by email could also be sent advertising for a hotel in the Palatinate.
Please note: Advertising for the entire product range is not covered by Section 7 (3) No. 2 UWG. Sending a voucher that can be redeemed in the sender's online shop is also not covered.
And what about accessories and complementary goods?
In principle, it seems justifiable to allow advertising of functionally related goods such as accessories and complementary products under the existing customer exception. For example, someone who has bought a printer is likely to be interested in buying toner or ink. According to the criteria of 'interchangeability of the products' or 'use of the products for the same or at least a similar need or purpose' developed by case law, a similarity of goods can easily be assumed in this case. Advertising for other electronic products, such as mobile phones, should no longer be allowed.
No objection from the customer
The customer must not have objected to the use of his/her e-mail address to receive advertising. This objection can be made by any means of communication or verbally. Therefore, according to current case law, customers cannot be required to change settings in a customer management system in addition to an objection in text form (AG Munich, judgement of 05.08.2022 - 142 C 1633/22). Objections must be recorded and taken into account in future promotional emails.
Clear and unambiguous reference to the right to object
The fourth requirement is particularly important. The marketer must clearly and unambiguously inform customers, both at the time of collection and each time the e-mail address is used, that they can object to its use at any time and free of charge. In any event, the cost of sending the objection must not exceed the cost of the basic tariff. Companies must provide customers with a contact address for this purpose. The objection itself should be possible directly from the e-mail. The easiest way to do this is to provide an unsubscribe link that will result in the email address being blacklisted without any further steps.
Please note: Like other promotional emails, promotional emails to existing customers must be legally compliant. In particular, the identity of the sender must be clearly recognisable at first glance (see Section 7 (2) No. 4 UWG). In addition, the subject line of the e-mail must correctly reflect the content of the message and indicate that it is an advertising e-mail. Finally, the imprint requirement also applies.
What needs to be considered in relation to the GDPR?
Although the GDPR does not contain any provisions that explicitly refer to the competition law privilege of existing customers, the legitimate interests of the advertising company pursuant to Art. 6 para. 1 sentence 1 lit. f GDPR can be considered as a justification. Pursuant to Art. 6 para. 1 sentence 1 lit. f GDPR, the processing must be necessary to safeguard the legitimate interests of the advertising company and the interests of the data subjects must not prevail. Although the GDPR does not contain detailed rules on this, Recital 47 of the GDPR makes it clear that data processing for the purposes of direct marketing can be considered as processing that serves a legitimate interest.
The interests of data subjects depend on what they subjectively expect in individual cases, but also on what can and may be objectively reasonably expected. Companies should therefore inform their customers transparently and at an early stage about advertising to existing customers as part of the data protection information. The data protection authorities also take into account the rulings of the Unfair Competition Act when weighing up interests. According to this, there are generally no overriding interests of the recipients worthy of protection if the advertising company also complies with the requirements for e-mail advertising contained in Section 7 Paragraph 3 UWG. On the other hand, the legitimate interests of the recipients are likely to prevail if the requirements of Section 7 para. 3 UWG are not met.
Feedback requests as permissible advertising for existing customers?
Since, according to the German Federal Court of Justice, customer satisfaction surveys are generally to be classified as advertising, the question inevitably arises as to whether such enquiries may be sent on the basis of Section 7 (3) of the German Act against Unfair Competition (UWG). As a rule, feedback requests are likely to constitute general image advertising for a company and not direct advertising for its own similar goods or services. However, the assessment may be different if a feedback request is sent in direct connection with a previously purchased product and the feedback for this product is requested in order to promote future business for similar products. According to the criteria of "interchangeability of the products" or "use of the products for the same or at least a similar need or purpose" developed by case law, a similarity of goods should also be assumed in this case. The Federal Court of Justice (BGH) has also shown itself to be at least open to such an interpretation, even if it did not have to conclusively answer the question in the case on which the decision was based (BGH, judgement of 10 July 2018 - VI ZR 225/17). Companies wishing to avoid any risk should always obtain the customer's consent for customer satisfaction surveys.
What are the consequences of non-compliance?
If the recipient of the unsolicited commercial e-mail is a consumer, he or she can generally claim a violation of his or her general personal rights. If the recipient of the e-mail is a business, there may be an interference with the established and exercised business activity. The advertising company must therefore reckon with civil law claims for injunctive relief and damages being asserted by the recipients concerned (Sections 823 (1), 1004 (1) sentence 2 of the German Civil Code by analogy). Infringements of competition law, such as Section 7 of the Act against Unfair Competition (UWG), may also be the subject of warnings from competitors and business and consumer associations. In the event of a justified legal warning, the advertising company is obliged to reimburse the necessary legal costs. In addition, unlawful data processing may result in measures being taken by the supervisory authorities, such as the imposition of fines. In addition, data protection violations may give rise to non-material claims for damages by those affected.
Practical recommendations
In order to avoid damage, companies should organise their processes carefully in accordance with the above requirements and review them regularly. If you wish to rely on the exemption under Section 7(3) of the Unfair Competition Act, you must ensure that the customers concerned are informed of the direct marketing and the possibility of objecting when their email address is collected. A good way to do this is to place a prominent notice directly below the email address input field. Before sending product recommendations to customers by email, check that no objection has been raised. Extra care must be taken when selecting the products to be promoted. Ensure that only similar products and services from the sender are promoted. Finally, every e-mail should contain a clearly visible reference to the right to withdraw at any time.
Please note: Experience has shown that the admissibility of advertising to existing customers usually fails due to a lack of information at the time of data collection.
So what should you consider before launching your email marketing campaign?
Check that the email addresses in your mailing list are contacts of existing customers or that explicit consent has been given. Make sure you have not received any objections. If the customer is informed of their right to object, both when their email address is collected and in each promotional email, then advertising for similar and appropriate products is permitted. Make sure that the advertising is limited to clearly similar products.
We can advise you on the lawful use of databases for marketing purposes, particularly for setting up and monitoring customer retention and loyalty programmes. We can also help you implement customer relationship management systems that comply with data protection regulations.
Content
- Advertising as unreasonable nuisance?
- Principle: No advertising without explicit consent
- Satisfaction surveys and inbox advertising
- Exception: Advertising to existing customers by e-mail
- What needs to be considered in relation to the GDPR?
- Feedback requests as permissible advertising for existing customers?
- What are the consequences of non-compliance?
- Practical recommendations
- So what should you consider before launching your email marketing campaign?