A German legal practice was not pleased to receive risqué emailed newsletters and was forced to go to court after the site insisted it was within its rights to carry on. Are we making this up? Certainly not says Osborne Clarke Cologne’s Konni Ewald, but are the double opt in references cause for concern?
Topic: Email marketing
Who: An adult entertainment website vs. a law firm
Where: Regional Court of Hamburg (File: 6 C 404/06)
When: October 11, 2006
The webmaster of a site with strictly adult-oriented content had sent e-mail newsletters to the e-mail address of a Hamburg law firm. The law firm had filed for injunctive relief, requesting that the webmaster be ordered to refrain from sending such newsletters to the law firm's address in the future. The defendant had argued that he had been using a double opt-in system and that obviously a confirmation e-mail had been sent from the law firm's mail account.
The judges have granted the injunction. They quote extensively from a legal opinion according to which only the double-opt-in procedure is legally safe for obtaining the consent of newsletter addressees, without however explicitly confirming this interpretation. According to the court, the defendant would have had to verify that the person registering for the newsletter was in fact identical with the owner of the mail account.
The defendant however could not offer any proof of the functioning of its registration system apart from an affidavit by one of its employees. It becomes quite obvious from the sarcastic tone of the ruling that the judges did not believe the defendant's claim that it used a double opt-in system in the first place. The court therefore considered that the e-mail newsletter had been unsolicited and was not covered by the recipient's prior consent.
Why this matters:
While at first glance this decision seems to suggest that sending commercial newsletters in Germany always requires a double-opt-in procedure, it should be treated with circumspection: Firstly, it comes from a lower court and has yet to be confirmed by any other jurisdiction. Secondly, the judges expressly refuse to pronounce themselves on the point whether a double-opt-in procedure is sufficient or necessary, but rather find against the defendant because he could not prove that the newsletter recipient had given his consent. Therefore, while a well-documented double-opt-in procedure might make it easier to prove certain facts, it should not be considered indispensable.