Exactly how long does consent given to receive email marketing last? And how specific must the consent be? Will general consent to marketing by unspecified companies from various sectors be valid? Hendrik Schöttle of Osborne Clarke Münich reports on a verdict of possible relevance to UK marketers.
Topic: Email marketing
Who: District Court in Berlin
When: June 2012
Law stated as at: 30 May 2012
The District Court in Berlin, Germany recently put German list brokers under pressure – by confirming existing case-law, but also by introducing new obstacles.
In its decision dated December 12th, 2011, the court adjudicated on a complaint of the Centre for Protection against Unfair Competition about advertising emails that had been sent by a company to a private recipient. The company argued that the mailing was covered by a consent declaration that the recipient had given when taking part in a promotion, run by a third party list broker.
The court, however, did not agree with the company's opinion: The consent declaration, obtained by the list broker, only contained a generic description of possible firms that may contact the recipient and did not list the company explicitly. In line with similar case-law, the court held that such a consent declaration is too broad and thus invalid, as it is not clear which firms may send advertising emails.
Consent time-expired in any event
Additionally, after obtaining the consent declaration, the company had not sent any advertising emails to the recipient for more than one and a half years. Thus, the court concluded that the consent declaration had in any event expired and could not serve as basis for marketing communication any more.
Furthermore, the court went beyond currently existing case-law: It held that one single consent declaration may not cover several marketing channels, e.g. postal mail, email and text messages. The court demanded one consent declaration for each single channel. This goes beyond what is currently required by the majority of respective case-law and beyond current practice in many cases. The future will show whether other courts will follow such restricted view.
As a consequence, the advertising email was lacking the necessary consent and the company was ordered to reimburse the costs incurred at the Centre for Protection against Unfair Competition.
Why this matters:
The decision shows that in Germany the use of contacts generated by third parties for marketing purposes has become increasingly risky. Companies relying on such contacts should take a close look at the respective consent declaration language. A trustworthy list broker should be able to provide these texts easily.
From September 2012 on, the broker should be able to do so anyway, as then a transitional period for the amended Federal Data Protection Act ends. After this date, any opt-ins still used (even if obtained in the past), have to be backed by clear proof, such as a log-file. This does not only apply to list brokers but to all companies, also if generating contacts for their own use only.
Any non-compliance with opt-in requirements for advertising emails may lead to preliminary injunctions, court proceedings, fines imposed by local authorities and, last but not least, bad press.
Osborne Clarke, Munich