Email marketing, but safely
Posted: Thu Jan 30, 2025 8:37 am
Anyone who takes the subject seriously will quickly realize that email marketing is a very demanding discipline and not just a bit of text with a few pretty pictures. In addition to good content and a target group that is tailored to it, the legal component also plays an important role. Simply sending a newsletter to everyone whose email address is available is not an option. This can even be very expensive - but that was the case even before the GDPR. If you follow our legal tips, you will minimize the risk of having problems here.
But what do you need to consider when using email marketing to avoid receiving an expensive letter from a lawyer? We sat down with our lawyer and data protection expert, Mr. Oberbeck, to answer the most important questions with our legal tips.
1. Opt-in and address generation
Since email marketing starts with the recipients for your emails, we will first address the legal requirements for a valid opt-in and address generation.
1.1 Who can I send newsletters and promotional south-korea number dataset emails to?
Advertising emails and newsletters may only be sent to recipients who have previously given their express consent.
In addition to conventional newsletters, the consent requirement also applies to commercial information via SMS, WhatsApp or messages via social networks (e.g. Facebook, XING). Newsletters are also considered advertising if they are essentially editorial in nature. As a rule, press releases or seminar announcements are also classified as "advertising" because they indirectly serve to promote the sales of the sending company.
“Advertising” is any form of communication that directly or indirectly serves to promote sales.
1.2 When is there legal consent for advertising emails?
In order to obtain legally valid consent, the following points should be considered:
The recipient must have expressly and actively agreed to receive advertising emails (opt-in). Consent must not be part of predefined contractual conditions or general terms and conditions (GTC) and cannot be derived from any other context. A mere right of objection (opt-out) is not sufficient. This means that the checkbox for the declaration of consent that is familiar on websites must not be pre-filled.
The declaration of consent must clearly state which company is permitted to send advertising or newsletters for which purpose. General information such as "partner companies" or "interesting offers and promotions" is not sufficient. If consent is obtained for sponsors, it must be presented simply and transparently. It is ineffective, for example, if consumers have to laboriously deselect partner companies listed in a list (BGH of May 28, 2020).
It must also be clear for which specific products the advertising consent is given. Abstract references such as "interesting products and services" are ineffective.
1.3 Is consent also required for service emails?
Pure service emails (transaction emails, such as order confirmations, system messages, etc.) that are required to fulfill or process an order do not constitute advertising and therefore do not require a declaration of consent. However, service emails only exist if contact is absolutely necessary (e.g. address request after a failed attempt to deliver goods) and the service email does not contain any additional advertising.
Attention: Advertising is also defined very narrowly in this context. You are not even allowed to offer a voucher for your next purchase or a free download.
1.4 Can existing contacts be asked for consent once by email or contacted for recovery purposes?
Even if it is partially tolerated in practice, it is not legally permissible. You may not write to email addresses without an existing opt-in for advertising purposes - not even to ask for an opt-in. However, you can always offer an opt-in for advertising emails during the ordering process. It is also not legally permissible to write to customers without consent for the purpose of winning back customers if they have terminated an existing contractual relationship. The exception in Section 7 Paragraph 3 of the UWG does not apply here either, as there is no existing contractual relationship. This measure, which is partially permissible for postal advertising, is not possible for email advertising.
But what do you need to consider when using email marketing to avoid receiving an expensive letter from a lawyer? We sat down with our lawyer and data protection expert, Mr. Oberbeck, to answer the most important questions with our legal tips.
1. Opt-in and address generation
Since email marketing starts with the recipients for your emails, we will first address the legal requirements for a valid opt-in and address generation.
1.1 Who can I send newsletters and promotional south-korea number dataset emails to?
Advertising emails and newsletters may only be sent to recipients who have previously given their express consent.
In addition to conventional newsletters, the consent requirement also applies to commercial information via SMS, WhatsApp or messages via social networks (e.g. Facebook, XING). Newsletters are also considered advertising if they are essentially editorial in nature. As a rule, press releases or seminar announcements are also classified as "advertising" because they indirectly serve to promote the sales of the sending company.
“Advertising” is any form of communication that directly or indirectly serves to promote sales.
1.2 When is there legal consent for advertising emails?
In order to obtain legally valid consent, the following points should be considered:
The recipient must have expressly and actively agreed to receive advertising emails (opt-in). Consent must not be part of predefined contractual conditions or general terms and conditions (GTC) and cannot be derived from any other context. A mere right of objection (opt-out) is not sufficient. This means that the checkbox for the declaration of consent that is familiar on websites must not be pre-filled.
The declaration of consent must clearly state which company is permitted to send advertising or newsletters for which purpose. General information such as "partner companies" or "interesting offers and promotions" is not sufficient. If consent is obtained for sponsors, it must be presented simply and transparently. It is ineffective, for example, if consumers have to laboriously deselect partner companies listed in a list (BGH of May 28, 2020).
It must also be clear for which specific products the advertising consent is given. Abstract references such as "interesting products and services" are ineffective.
1.3 Is consent also required for service emails?
Pure service emails (transaction emails, such as order confirmations, system messages, etc.) that are required to fulfill or process an order do not constitute advertising and therefore do not require a declaration of consent. However, service emails only exist if contact is absolutely necessary (e.g. address request after a failed attempt to deliver goods) and the service email does not contain any additional advertising.
Attention: Advertising is also defined very narrowly in this context. You are not even allowed to offer a voucher for your next purchase or a free download.
1.4 Can existing contacts be asked for consent once by email or contacted for recovery purposes?
Even if it is partially tolerated in practice, it is not legally permissible. You may not write to email addresses without an existing opt-in for advertising purposes - not even to ask for an opt-in. However, you can always offer an opt-in for advertising emails during the ordering process. It is also not legally permissible to write to customers without consent for the purpose of winning back customers if they have terminated an existing contractual relationship. The exception in Section 7 Paragraph 3 of the UWG does not apply here either, as there is no existing contractual relationship. This measure, which is partially permissible for postal advertising, is not possible for email advertising.