Following a long period of inactivity on the topic, the German Federal Court of Justice (BGH) got to grips once more with the subject of email marketing. In its judgment of 01.02.2018 -III ZR 196/17, the BGH has now ruled that a single consent to advertising can refer to several communication channels at the same time without infringing on the conditions of Section 7, Para. 2, Nos. 2 and 3 of the German Act against Unfair Competition (UWG). The BGH formulated its guiding tenet as follows:

The European General Data Protection Regulation (GDPR) will introduce numerous changes, with implications for the widest range of sectors. You can gain an overview of some of the possible consequences for email marketing here.

It hasn’t arrived yet, but a lot is already being written and said about it: As of 25 May 2018, the General Data Protection Regulation (GDPR) comes into effect throughout Europe. And it’s raising a lot of questions. One question that plays a very relevant role in the context of e-mail marketing is how a declaration of consent should be formulated so that it complies with the GDPR. Read the full document here.  

Commissioning a mail server is initially not terribly complicated, but at the latest when it comes to keeping an eye on your reputation, or if you want to implement authentication measures like SPF (Sender Policy Framework), DKIM (DomainKeys Identified Mail) or DMARC (Domain-based Message Authentication, Reporting and Conformance), it becomes considerably more complex and there’s no way around using appropriate analytical and other tools. Fortunately, there are several free possibilities available in the Internet. The websites are all in English. Read the full document here.

Recently, the German Federal High Court of Justice (BGH) looked at the question of whether a pre-formulated declaration of consent was “concrete” enough to serve as permission for the sending of commercial emails.1 The CSA must also frequently deal with this issue when confronted with complaints. Around 50% of the disputed consents were deficient when it came to how concrete they were. The core problem is due to the declaration of consent being formulated too broadly and therefore inadmissible as general consent. So, let’s have a look at the requirements for how concrete a reformulated declaration of consent needs to be. Read the full document here

It’s often recommended, but how does an double-opt-in email actually work in practice? And why is it recommended in the first place? Senders of commercial emails must be able to show (and prove) that they have consent to use an email address and that the consent was given by the actual owner of said address. Numerous legal decisions have shown the following:

The German Federal Court of Justice (BGH) announced an important verdict (I ZR208/12) on the (im)permissibility of recommendation emails on 12 September 2013. The circumstances the BGH examined were as follows: The claimant, without having given his permission, received repeated product recommendations from the defendant, who had established a recommendation function on her website where she was named as the sender of the recommendation email. As a result, the complainant wanted aninjunction against the defendant. The lower-court judgments (Local and State Courts in Cologne) had rejected this, on the grounds that the defendant could not be held responsible for the misuse of the recommendation function by a third party.

What will change for email senders?

Which differences and similarities exist?

Advertising can take multiple forms. It is no wonder that there is often confusion about whether a mailshot is actually advertising as defined in competition law, and hence is subject to the strict conditions that apply to sending advertising emails (e.g. in Section 7of the German Act Against Unfair Competition (UWG)) or in Article 13 of the European Data Protection Regulation for electronic communication). The sender is often not aware that they are actually sending an advertising email. This article uses examples to help clarify when an email is considered to be an advertisement.