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Email marketing and newsletter law: double opt-in and unsubscribing

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tagsglossar, marketing, recht

2 min read

Email marketing and newsletter law: double opt-in and unsubscribing

In short: Newsletters need provable consent (double opt-in), an unsubscribe link in every mail, imprint and clean data processing; exceptions for existing customers are narrow.

In more detail: Email is an own, plannable channel, but legally strict: advertising emails without consent are in principle inadmissible under § 7 UWG (risk of cease-and-desist) and violate the GDPR.

In Depth

  • Consent must be voluntary, informed, specific, unambiguous and provable; pre-ticked boxes do not count.
  • Double opt-in (DOI): 1. entry in the form, 2. confirmation mail with link; only after the click the contact becomes active. Log: time, IP (briefly), wording, confirmation.
  • Coupling ban: a newsletter may not be a condition for a contract/purchase.
  • Content of consent: name what (news, offers), how often, unsubscribe note, link to privacy policy.
  • Do not buy address lists, no third-party lists.

Existing-customer exception (§ 7(3) UWG)

Whoever received the email address in connection with a sale from the customer themselves may advertise similar own products if the customer has not objected and was clearly informed of the right to object (at any time, without costs other than transmission) at collection and in every mail. Interpret narrowly; in doubt use DOI. Transactional mails (order confirmation, shipping info, invoice) are not advertising; avoid mixing with advertising.

Obligations in every mail

  • Sender recognisable, subject not misleading.
  • Imprint details (provider identification).
  • Unsubscribe link (one click, no login) and prompt execution; block the unsubscribed in the list (suppression list).
  • Privacy notice and note on withdrawal of consent.
  • Tracking (open/click measurement) is a privacy topic: inform, consent where necessary, as data-minimal as possible.
  • Service providers/newsletter tools: data processing agreement, check server location/third country.
  • Retention: consent proof also after unsubscribing (evidence purpose) to a limited extent.

Doing it well

  • Offer value (learning tips, new arrivals, exclusive offers), subject lines honest, fix a rhythm.
  • Segment (interests), test (A/B), deliverability (SPF, DKIM, DMARC, reputation).
  • Clean bounces and inactive contacts.
  • Mobile readable, plain-text alternative, accessibility.
  • Design mails with few images, clear links.
  • Forbidden tricks: importing contacts without consent, “invite friends” functions sending advertising mails to third parties. Check your system for compliance; in doubt legal advice/data protection officer.

See also: Cease-and-desist, Marketing for beginners

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