From the Practice of the eco Complaints Office (5): Legal Pitfalls Around Unsubscribing from Newsletters

The sender of newsletters or other promotional emails must always be aware that recipients, at some stage, may no longer wish to receive promotional mailings and may unsubscribe.

In this article, we will look at the legal aspects that need to be taken into account when unsubscribing. In a previous blog article, we analysed the reasons for unsubscribing from the recipient’s point of view and highlighting the insights that senders can gain from such unsubscriptions for their own business model,

There are two different legal constellations in which email recipients might unsubscribe. In one, the email recipients may have previously given their consent, which is later revoked by unsubscribing from a newsletter or mailing list. In the other constellation, the act of unsubscribing can be used to object to the sending of future advertising emails on the basis of an existing customer relationship.

The legal consequence is the same in both constellations: there is no longer permission to send newsletters and (other) promotional emails. Nevertheless, there are specific aspects to be considered depending on the case constellation.

1) Particularities when revoking consent

Once someone has said “yes” to receiving promotional emails, they are not bound to this for time immortal. Advertising consent can be revoked. In the European market, Article 7(3) of the GDPR is particularly relevant. It is important that the person giving consent is clearly informed of the right to revoke their consent before that consent is given. The design of the revocation option itself must be as simple as that of the consent option.

How to design the revocation option correctly

Every promotional email must contain an unsubscribe option. This can be, for example, an unsubscribe link within the email or the designation of an email address for unsubscriptions. Processes that make it difficult for the email recipient to unsubscribe are not permitted. This includes, for example, the so-called double opt-out procedure, in which the user is requested to confirm the unsubscription by email after unsubscribing, or a mandatory request for the reason for the unsubscription.

However, unsubscribe requests received by the company in other ways must also be observed immediately, for example by email or telephone.

Interpreting the revocation statement correctly

The interpretation of the withdrawal notice can sometimes be challenging, especially if the unsubscription is not communicated through dedicated designated channels. In order to avoid annoyance and complaints, it is important to interpret the revocation as accurately as possible and to implement it in accordance with the expressed intention. In case of doubt, one should always assume “more” revocation rather than “less”.

A request for revocation formulated as follows should therefore be understood as a revocation of all consents given: “I request you to delete all data processed by you concerning my person”.

A mere termination of a contract, on the other hand, even the termination of a free account, will not necessarily be understood as a revocation of any consent given in parallel to the sending of advertising emails. In case of doubt, you should ask the customer how exactly the cancellation request is to be understood.

 May or must I confirm the cancellation?

This is not necessary and should be well considered. People who find advertising mailings an unacceptable nuisance do not necessarily react positively to emails that are sent again, even if it is only a confirmation of the cancellation. However, such confirmations are not actually prohibited.

2) Special features of revocation in an existing customer relationship

Senders are interested not only in sending mailings based on consent, but also in addressing existing customers without consent.

This possibility is opened up by the European e-Privacy Directive in conjunction with the national implementations, e.g. in Germany Art. 7 (3) of the German Act Against Unfair Competition (UWG) – but only under strict and limited conditions.

In this context, senders often overlook the fact that an important prerequisite for the lawfulness of the sending on this basis concerns the possibility to unsubscribe (legally designed as the revocation of consent against further promotional use of the email address). Note: the other requirements for lawful sending of advertising in the context of an existing customer relationship are not discussed here.

What must be considered with regard to the right to revoke consent?

The legal requirements provide for three mandatory points in this respect:

  1. Already at the time of collecting the address in the context of the sale of goods or services, the right to revoke consent at any time must be clearly and unambiguously pointed out; this includes whether and how to revoke consent as well as the fact that no costs other than the transmission costs according to the basic rates will be incurred for the revocation!
  2. If the email address is used for advertising purposes, a reference to the possibility of revocation must also be included!
  3. The recipient must not have objected to the promotional use of the email address.

In summary, the CSA recommends: Take unsubscribing from email advertising seriously and establish legally compliant systems to ensure that you do so. Implementing unsubscriptions as soon as possible is important because unsubscribing removes permission; many complaints, warnings and court cases are based on sending advertising emails after unsubscribing. If unsubscribe options are missing or faulty and unsubscribes are not respected, there is a risk of sanctions and loss of reputation!

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