Email Marketing What You Can And Cant Do 8211 10 Use Cases
Management Summary
Note: These application examples serve as orientation and are therefore not to be understood as legal advice for email marketing. Please note that the legal situation can change constantly. We recommend that you find out more using the links at the end of this blog entry and that you consult your legal department if you have any legal questions.
Are you allowed or not allowed? – that is the question here.
For the 10 use cases in this blog article we use Bernd’s example. Bernd runs several flower shops in Vienna. Since he primarily relies on regular customers, he has discovered the tool of email marketing with which he can specifically address his customers. Among other thingsBernd sends out a monthly newsletter, with which he informs his customers about his latest range of plants and flowers of all kinds. You can register for this newsletter on Bernd’s website.
1. Use Case: Sending the newsletter to existing customers without their express consent
Bernd sends his newsletter not only to contacts who have registered via the web form but also to his large B2B customers with whom he is in regular email contact. These B2B customers did not expressly give Bernd any prior consent. Is Bernd allowed to do that?
This is a legal gray area. In principle, Bernd is allowed to do this if all of the following conditions are met: (1) the customer’s email address was collected when selling a product or serviceand(2) the customer had the opportunity to object to the sending at the time of collectionand(3) Similar products and services are advertised in the newsletterand(4) the customer is not in oneECG listregisteredand(5) The customer can easily unsubscribe from the newsletter at any time. In practice, condition (2) in particular cannot really be fulfilled. However, the legal risk for existing customer relationships is considered to be low.
2. Use Case: Incentives for newsletter registration
Bernd also runs an online shop in which he offers a certain range and delivers directly to customers. During the registration process in the online shop, Bernd offers his customers the opportunity to register for the newsletter and, as an incentive for registering, grants a 10% discount on their next purchase. Is Bernd allowed to do that?
Yes. Incentives may be offered for registering for the newsletter as long as registration is voluntary.
3. Use case: Linking newsletter registration to the purchase of goods
In addition to the discount that he offers as an incentive for signing up for the newsletter in his online store, Bernd had another (in his opinion) great idea: he only lets customers complete the purchase online if they also sign up for the newsletter. Is Bernd allowed to do that?
No. The coupling ban applies here. The conclusion of a contract (e.g. purchase agreement) must not be linked to consent to receive advertising content.
4. Use Case: A consent for data protection and newsletter registration
Bernd finds that the opt-in formulations in the contact form on his website are very lengthy. He therefore has the idea of combining the opt-in for the data protection regulations and the registration for the newsletter into one point. This makes the form shorter and users only have to check one box instead of two. Is Bernd allowed to do that?
No. Consent to receive the newsletter must be obtained separately from consent to other conditions.
5. Use case: Collection of additional data when registering for the newsletter
Bernd would like to provide his customers with tailor-made offers from the flower shop in their immediate area. To do this, he decides to request the postal address in an optional field in the newsletter registration form. Is Bernd allowed to do that?
It depends on. Basically, the “principle of data economy” applies. Bernd is only allowed to collect data that is absolutely necessary for the provision of the service or that is expected by the customer, even if these are optional fields. The postal address is not required to send the newsletter. Bernd can, however, ask his customers to provide more information about themselves in a separate mailing. This works best if you communicate to customers a clear benefit for disclosing their data. For example, that they receive better tailored offers.
6. Use Case: Buying email addresses
Bernd is frustrated. In the last 6 months he has not been able to generate any new newsletter subscriptions. But he would like to inform even more people about his varied range. That’s why Bernd is looking online for a way to buy existing email addresses for residents in Vienna. Is Bernd allowed to do that?
This is not recommended. In principle, the acquisition of email addresses is not legally prohibited. However, Bernd must have obtained the express consent of the recipient before sending his newsletter and must prove this in case of doubt. When purchasing e-mail addresses, it is practically difficult to obtain consent (BEFORE sending any e-mail).
7. Use case: Subscription to another newsletter
As a teenager, Bernd was part of an environmental organization from which he still receives a monthly newsletter. Bernd knows that the members of this organization are very concerned about the environment and like to buy plants – after all, that’s where he discovered his love for floristry. The organization also has a huge reach in Vienna. That’s why Bernd came up with the idea of playing his content via the organization’s newsletter for a fee. Is Bernd allowed to do that?
Yes. Bernd is allowed to buy advertising space in someone else’s newsletter and place his advertising there. However, this content must be explicitly marked as advertising by the sender.
8. Use case: Co-sponsorship of competitions
Bernd has now signed up for the environmental organization’s newsletter – but his new registrations are still stagnating. He has now heard about a great online competition in Vienna in which several companies are sponsors. If you want to take part in the competition, you must agree that your contact details will be used by the participating companies for advertising purposes (such as sending a newsletter). Is that legal?
Basically yes. Loudrecent case lawParticipation in competitions is to be viewed as voluntary. This is why there is no absolute ban on coupling in competitions. Co-sponsorship is also legally permitted, but strict conditions are required for this. For example, consent must be express and effective, the purpose of use must be stated and the companies must be named. In addition, the number of participating companies is repeatedly limited by court decisions.
9. Use Case: Long time between opt-in and sending of the first newsletter
Bernd’s business is booming. He’s so busy with his business that he doesn’t get around to sending out his newsletter for two years. When he finally publishes another issue, he receives a complaint from a recipient: the newsletter was sent to her unlawfully because she did not agree to it being sent. Is Bernd in trouble?
Possibly yes, because the opt-in can expire if too much time has passed between agreeing to receive the newsletter and actually sending the first issue to this recipient. According to thatJudgment of a Munich courtFor example, in 2018, 17 months was considered too long. Bernd should therefore make sure to send his newsletter at least once a quarter to avoid legal difficulties.
10. Use Case: Entry in ECG list
Bernd receives another complaint from a newsletter recipient. He would have put himself in the so-calledECG listregistered. Consumers who generally do not want to receive advertising emails can register in the ECG list. Now he illegally has Bernd’s newsletter in his inbox. Is Bernd in trouble?
Not necessarily. If the recipient has agreed to receive Bernd’s newsletter despite being entered in the ECG list, this consent is valid and sending the newsletter is legally compliant. What is crucial here is that the recipientdespite his existing ECG recordsigned up for the newsletter.
Conclusion
Email marketing remains one of the most popular forms of communication for both marketers and consumers. Nevertheless, there are a few things that need to be taken into account, especially when sending advertising content (and newsletters are certainly part of this), so that you act in accordance with the law and avoid legal consequences due to ignorance.
Do you have anymore questions?
We will be happy to support you with all questions about your email marketing and carry out an audit of your opt-in processes. Please send a contact request tokontakt@e-dialog.group
Sources & Further Links
https://www.e-recht24.de/artikel/datenschutz/11551-kopplungsverbot-dsgvo-newsletter-gewinnspiele.html
https://www.wko.at/service/wirtschaftsrecht-gewerberecht/EU-Datenschutz-Grundverfassung.html
https://www.wko.at/service/wirtschaftsrecht-gewerberecht/E-Mails_versenden_-_aber_rechte.html
https://www.wko.at/service/innovation-technologie-digitalisierung/e-mail-marketing-fragen-und-answers.html
https://www.akademie.de/de/wissen/basiswissen-e-mail-marketing/gesetze-grunden-e-mail-marketing
https://www.it-recht-kanzlei.de/rechtssichere-e-mail-werbung.html
https://www.e-recht24.de/artikel/marketing-seo/10578-marketing-gewinnspiele-co-sponsoring.html
https://www.absolit.de/rechtslage/aktuelle-judgments-im-e-mail-marketing
