Email marketing under GDPR: the so-called “spam prohibition”

Email marketing has been a strongly discussed topic since the entry of the GDPR. Surprisingly, the GDPR has essentially no changes to the old law for email marketing and is overlaid by other legislation. This field is covered by the ePrivacy Directive from 2002 and the national legislation based on it.

The following regulations apply to email marketing:

  • GDPR: Consent or legitimate interest (no special regulation)
  • is overlaid by § 7 UWG (German competition law) or the respective national implementation of Art. 13 of the ePrivacy Directive

The so-called “spam ban” is based on provisions in § 7 para. 2 no. 3 UWG (competition law) in national law, which are based on the European ePrivacy Directive of 2002. This means that there are identical rules in the respective national laws in all EU member states. In the United Kingdom, for example, this rule is contained in sec. 22(2) PECR, in Austria in § 107 (2) TKG and so on. Here is the (shortened) wording of Art. 13 Par. 1 ePrivacy Directive:

Article 13 Unsolicited communications

The use of […] electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.

Emails may therefore only be sent with the prior “express” consent of the recipient within the meaning of Art. 7 GDPR. This requires a specific declaration by the recipient – the so-called “double opt-in”.

The following must be considered for the “double opt-in”:

  • The purpose is to provide proof of consent in a legally binding manner
  • 1. opt-in is a non-prefilled checkbox 
  • 2. opt-in is a confirmation email with a link (it must not contain any advertising)
  • both consents are recorded (on the basis of legitimate interests)

The so-called “existing customer exception” § 7 Section 3 (UWG):

An important exception in this context is the so-called “existing customer exception”, which is based on the provisions of § 7 Section 3 German Act against Unfair Competition (UWG). This exception only applies if the following conditions are fulfilled:

  • These are email addresses of existing customers
  • The email may only contain information about “similar goods or services”. 
  • An opt-out hint is given at collection(!)
  • as well as for each further use (i.e. in the email footer)

Any breach of these regulations may be reported by recipients, supervisory authorities, competitors or associations.

Should you have any further questions about email marketing after this short excursus, please feel free to contact us at any time. We look forward to hearing from you.