I am asked time and again how companies can send can send legally compliant advertising emails or newsletters.
Fundamentals
It should be known that advertising emails and newsletters may only be sent to a person if the person has explicitly given their consent. Both the provisions of Section 7 UWG and Art. 6 para. 1 lit. a) GDPR must be taken into account.
It should also be known that this consent may not be foisted on the consenting party, but must be given voluntarily and only if the consenting party has been informed transparently about the nature and scope of the consent. This means that the consent clause should describe exactly what the person is consenting to. I recently dealt with an ineffective clause in which an attempt was made to define the scope of advertising emails very broadly. In addition, the consenting party must take action to declare their consent.
Consent can also be obtained on the Internet via a checkbox can also be obtained online. The customer must actively click on this checkbox and have the opportunity to receive all information relating to their consent at this time. his consent at this time.
So far so good.
Now it's time for practical implementation
Why is this topic so important for companies? Because they bear the burden of proof that effective consent has been given. This requires compliance with a few key points in order to avoid the risk of being risk being warned by a dissatisfied customer or prospective customer. Yes, you read that correctly. Anyone who sends ineffective advertising emails can be warned be warned.
Double opt-in: Why?
The email sender must prove that they have received the consent from the person who left their email address, e.g. in an online form. e.g. in an online form. However, he cannot prove this as long as there is a possibility that the email could have been entered there by just anyone. could have been entered there. However, if the owner of the email address confirms his consent by confirming receipt of an email that was sent to his email address email address (double opt-in), the sender may assume that he has the consent of the right person, that he has the consent of the correct person.
Incidentally, this also means that the so-called confirmed opt-in procedure is not sufficient. In this case, a confirmation e-mail is sent to the registered e-mail address. If this is not your consenting party, the email recipient must actively unsubscribe from receiving unsubscribe from future newsletters. The argument that you have not actively unsubscribe is not sufficient to prove that the recipient has given their consent. has given their consent.
Existing customers: Consent not required Under certain circumstances, consent is not required if you send advertising emails to existing customers. The exceptions result from Section 7 (3) UWG. You can find details on this in an older blog of mine (under point 3).
In Part II, I deal with sponsoring or cooperation partners in competitions.
If you have any questions about drafting consent clauses, please contact us. We will support you.
