EMAIL MARKETING
a ‘permission at some point’, or the simple disclosure of an email address is not suffi cient. When in doubt you must be able to prove in detail when and how the recipient asked for the newsletter. Additionally, you must comprehensively explain beforehand for what purpose and to what extent the customer’s data is collected and used. Keeping a corresponding data privacy policy available is not mandatory by law, but it is recommended to post such a statement on the company website.
T e permission must always be made in writing, namely in such a way that the recipient can understand clearly what s/he is getting into. If, for example, consent to use personal data for research and promotional purposes is obtained at the same time, compliance with the usage of data for promotional purposes has to be separated and visually highlighted from the text. According to the rulings of the Federal Supreme Court (Bundesgerichtshof), you have to use the so-called ‘double opt-in’ procedure.
Double opt-in means that if a user signs up for a newsletter he will fi rst receive an email (free of advertising) that informs him that he subscribed to such a newsletter; this email is connected with a link to confi rm. Once the user activates this link he will then be added to the distribution list; otherwise, he will not receive further messages.
T is procedure has two advantages: you can prove that the recipient agreed to receive newsletters and the consent is automatically traced.
Exception for existing relationships
goods or services, including immovable property, rights and obligations.”
Consequently, you are already advertising as soon as you are presenting your business activity. Aſt er all, you are hoping to catch the attention of potential new customers and, ideally, sell your products or services to them. In this case it is also irrelevant whether your promotion is labelled as such or, for example, is called a ‘newsletter’— what matters is not what’s on it but what’s in it!
Consent
You may send newsletters or other promotional emails, but the recipient must have expressly given his or her consent—an assumed consent,
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Where there are existing customer relationships the Act Against Unfair Competition allows a narrow exception according to Section 7(3): Email addresses obtained from the customer in the course of selling products or services can be used without explicit consent to promote similar products or services. T is applies provided the customer has not objected. Furthermore, the customer is explicitly informed in the advertising email that he can opt out at any time. Regardless, this reference to an optional opt-out must be included in every newsletter.
T e off ering of supplementary goods or services or accessories has been accepted, as long as these goods and services keep within fi nancial limits. But so-called ‘up-selling’, meaning the attempt to sell higher-value products or
services for
correspondingly higher prices to the established customer base, is not covered by the exception.
Anyone who does not abide by data protection laws should expect penalty charges between €50,000 and €300,000, or cease and desist letters from competitors.
Bettina Krause is an IP attorney specialising in trademark, design, title, competition, Internet and domain laws. She is a lecturer at the Media Institute at Johannes Gutenberg University and a member of the German Association for the Protection of Intellectual Property, the German-American Lawyers Association, ECTA and INTA.
“EMAIL ADDRESSES OBTAINED FROM THE CUSTOMER IN THE COURSE OF SELLING PRODUCTS OR SERVICES CAN BE USED WITHOUT EXPLICIT CONSENT TO PROMOTE SIMILAR PRODUCTS OR SERVICES.”
Additionally, one would have to reimburse the plaintiff for lawyer’s expenses. It therefore pays to review your databases and check whether explicit consent to use the data for advertising purposes at the point of elicitation was given.
It could be problematic if you acquired data yourself but did not follow the corresponding rules, and also if you bought data with an unknown provenance. Only use existing data for email marketing when you’re sure that the recipient has given consent to receive your advertisement. In this way you can avoid unnecessary trouble.
Bettina Krause is the founder of IP law fi rm Bettina Krause. She can be contacted at:
info@ra-krause.de
Trademarks Brands and the Internet Volume 1, Issue 4
33
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