The newsletter unsubscribe – or opt-out

Recipients of newsletters and other advertising emails have the right to unsubscribe from these emails at any time (opt-out).

If a newsletter recipient has previously given their consent to receive the newsletter, they also have the right to revoke this consent at any time. For the sender, this means that they may no longer send the newsletter to the recipient in the future.

The same applies in cases where newsletters are sent on the basis of an existing customer relationship. Since it is one of the legal requirements for sending advertising emails based on an existing customer relationship, the sender may no longer send newsletters if the recipient has objected to their use.

Any cancellation of a newsletter subscription, i.e. any opt-out, can be issued informally. This means that it can be done by confirming the unsubscribe link in the advertising email, for example, but also by sending an email, by phone call, by post or by a lawyer.

The opt-out does not have to be referred to as a revocation or objection (and no reason needs to be given either). It is sufficient for the recipient to indicate that they are no longer interested in receiving newsletters from the sender.

After an opt-out, it is no longer legally possible to send advertising emails.

In practice, this raises the question, among others: Is every further advertising email sent from the second the opt-out occurred no longer legally compliant? So how long is the deadline for the sender to implement newsletter unsubscriptions? The Regional Court of Paderborn dealt with this issue in March 2024 (file no. 2 O 325/23).

The judgement of the Paderborn District Court

In the case that the District Court had to decide, the sender of a newsletter was requested by a legal letter to submit a cease-and-desist declaration with a penalty clause and to block the email address for advertising. The sender then sent further newsletters to the recipient. In one of the other advertising emails, the recipient clicked on the unsubscribe link. This was also initially followed by further advertising emails before the sender removed the recipient’s email address from the distribution list.

First of all, the district court emphasised in its ruling that the letter from a lawyer, with which the sender was requested to submit a cease-and-desist declaration with a penalty clause and to block the email address for advertising, constitutes an opt-out. The later use of the unsubscribe link had no bearing on the start of the opt-out implementation period. Rather, the sender was required to refrain from sending any further advertising e-mails to the recipient from the time of the lawyer’s letter.

When it comes to the implementation period for newsletter unsubscriptions, the Paderborn Regional Court essentially said: the user is obliged to respect the objection immediately, i.e. the implementation must take place without delay.

Translated, this means that the sender is obliged to implement the opt-out as quickly as possible.

In the specific case, it comes down to an individual case assessment, in which many factors can play a role. For example, the quantity and frequency of the advertising emails sent and the type of opt-out can be taken into account. An opt-out by post may possibly justify a slightly longer implementation period than an opt-out via an unsubscribe link, which is processed fully automatically.

In the present case, for example, the regional court found that the sending of three further advertising emails is not compatible with the swift implementation of the opt-out. The court thus supports the view that the opt-out usually provides for immediate implementation.

However, sending even just one further advertising email after the opt-out may no longer be legally compliant. If, for example, a period of one month has passed since the opt-out, this no longer constitutes a prompt implementation. An advertising email sent at that point in time is no longer legally compliant.

In summary, this means that every advertising email sent after an opt-out requires a justification as to why the opt-out had not yet been implemented at that point in time.

In practice, senders should therefore establish a system that ensures the immediate implementation of an opt-out, regardless of the method used for the opt-out. This is also an important aspect of reputation management, because a fast unsubscribe process helps to minimise complaints and thus optimise deliverability.