Legal hurdles for e-mails, especially for advertising

If you plan an advertising distribution via e-mail (mailing), you better check the legal situation beforehand.

DISCLAIMER: Here you can see some information that we have compiled for you (without the claim to completeness, legal correctness, exact sources and judgments!) once roughly to the best of our knowledge. This is not legal advice and is not a substitute for legal advice. Ask your lawyer for binding information.

• In contrast to sending advertising by mail, sending e-mails without the prior consent of the recipients is not permitted in Germany.
• Consent of the recipient is usually given by means of a so-called “double opt-in”: the recipient enters himself/herself in a list and then receives an e-mail in which, by clicking on a link contained therein, he/she once again consents to be included in this e-mail distribution list.
• The strict rules apply when the recipient is a consumer, but also when it is a business. Even a first-time advertising e-mail to companies without the prior consent of the recipient is illegal.
  And even a one-time e-mail contact does not imply consent to receive advertising e-mails. It is also not enough that a customer relationship already exists. It is not even allowed to put a check mark already in forms at the question “Do you want to receive emails”. This must be done by the email recipient on their own.
• Purchasers of e-mail address data are themselves liable for purchased address lists. The purchaser of e-mail address data cannot be satisfied with a general assurance by the seller that the address material is suitable for e-mail advertising.
• Violations can quickly result in high fines.
• In addition, most provider contracts are subject to severe contractual penalties and termination without notice. Costs and disadvantages incurred by TBA in connection with illegal advertising dispatch must be passed on to our customer (compensation for damages). This results among other things from our AGB.
• Anyone who thinks they won’t be “caught” is underestimating the now very effective detection capabilities for such mass emails.
• The mandatory information (imprint) required on business letters must also be provided in e-mails. For example, in the case of a GmbH, in addition to the usual contact details, the legal form, registration court/number/registered office and the full first and last names of the managing directors must also be stated.