Do email marketers deploying double opt in need a prior opt in before sending the second message seeking confirmation that the recipient has opted in? Come again? Konni Ewald and Felix Hilgert of Osborne Clarke Cologne report a recent Munich judgment that once again underlines how easy UK email marketers have it here in the UK.
Topic: E-mail marketing
Who: A webmaster
Where: Regional Court of Munich (File: 161 C 29330/06)
When: November 16, 2006
What happened:
The regional court of Munich had to decide a case in which the claimant had received several e-mails requesting the confirmation of an electronic newsletter subscription. His application for injunctive relief was dismissed with the argument that in order for a double-opt-in scheme to function, non opt-in emails seeking confiramtionnecessarily had to be sent. The individual user needed only to ignore these mails and would not receive any further communication. The court considered that the user thus reasonably had to put up with receiving individual confirmation mails.
Why this matters:
The double-opt-in scheme is designed to prevent abuse. However, it cannot prevent users from subscribing to newsletters using other people's e-mail addresses, so that even with a double-opt-in system, it cannot be avoided that users receive one unsolicited e-mail, i.e. the one asking for confirmation. The court has ruled that this single e-mail cannot be considered unsolicited e-mail in the sense of anti-spam rules since if ignored, no further mails from that individual sender would follow.
