When email marketing with newsletters, companies need to know what is legal and what is not. This applies to potential as well as existing customers.
“If you don’t advertise, you die,” the American Henry Ford once said somewhat drastically, but certainly not entirely wrong in essence. Because if you want to sell products or services, you have to be known to your target group, and this usually doesn’t happen by itself. E-mail marketing, i.e. the sending of newsletters and mailings to existing or potential customers, is fast, effective and Favorable advertising method: Hundreds or thousands of recipients are reached with just one click, the costs for printing and sending advertising flyers or placing advertisements in newspapers, specialist and online media are eliminated. However, there are some legal aspects to consider.
If someone receives advertising against their will, it is an “unreasonable annoyance” – not only felt, but also legally. Specifically, the unsolicited sending of advertising to private individuals is an encroachment on the general right of personality, and it is an unlawful encroachment on the right to the company by traders. According to the law, advertising is referred to as: “Any statement made in the course of a trade, trade, craft or free profession with the aim of promoting the sale of goods or the provision of services”.
So, you are already advertising as soon as you present your business activity – after all, you hope to draw attention to potential customers and, in the best case, to sell them your goods or services. In this case it does not matter whether the advertisement is marked as such or is referred to as a “newsletter”; what is important is not what is on it, but what is in it!
Consent and Prior Information from the Recipient
Nevertheless, you have the option of sending newsletters or other advertising emails. However, the recipient must have explicitly given their consent – a presumed consent, “consent at some point” or simply providing the email address is not sufficient. Caution: If in doubt, you must be able to demonstrate in detail when and how the recipient ordered the newsletter! You must also have given him advance and comprehensive information about the purpose and the extent to which his data is collected and used. It is not explicitly prescribed by law to have a corresponding data protection declaration available, but it is nevertheless advisable to post such a declaration on the company website, for example.
Consent must always be given in writing – in such a way that the recipient can clearly see what he is getting into: if, for example, consent is obtained at the same time to use personal data for research and advertising purposes, consent must be given to the use of the data be separated from the rest of the text and highlighted for advertising purposes. According to the case law of the Federal Court of Justice, you must use the double opt-in procedure.
This procedure has two advantages: You can prove that the recipient agreed to receive the newsletter, and the consent is also logged automatically.
Special Feature of Existing Customer Relationships
In the case of existing customer relationships, the Unfair Competition Act. provides an exception: e-mail addresses that you received from the customer yourself in connection with the sale of a product or service may be used without the explicit consent to use similar ones To advertise products or services – provided the customer has not objected to this and is also explicitly advised in the advertising email that they can object to future use at any time; however, this reference to the “opt-out” must be included in every newsletter.
An “up-selling”, i.e. the attempt to sell the existing customer base of higher quality products or services at correspondingly higher prices, is not covered by this. Anyone who does not comply with the data protection regulations can expect fines of between 50,000 and 300,000 dollars or competition law warnings from competitors. It is therefore worthwhile to check your data stocks to determine whether explicit consent to the use of the data for advertising purposes was given during the collection.
It could be problematic if you entered customer data yourself but did not observe the relevant requirements; but also, if you have bought address data that you do not know exactly how it came about. Only use existing data for email marketing if you know for certain that the recipient has given their consent to receive your advertising – this will avoid unnecessary trouble.