Double opt-in procedures are widespread. They are mostly used to check whether the owner of an e-mail address that has been entered into a web form also operated the web form or whether this at least meets with his approval. E-mail newsletters or other e-mails containing advertising are often prepared herewith.
Advertising in e-mails usually requires the consent of the recipient (opt-in). In very limited cases, advertising is also allowed after a previous order without explicit consent.
To prevent web forms from being misused to send third-party email advertising, the double opt-in procedure involves first sending an email containing a confirmation link. If the recipient clicks on the link in the double opt-in email, it is clear that they have previously used the web form and therefore confirmed their consent on the website (opt-in) again (double opt-in).
Background
To put it politely, the courts are extremely critical of email advertising. Therefore, every company is advised to use the double opt-in procedure.
No advertising
The temptation for companies is now great to appear as friendly and service-oriented as possible in the double opt-in email. However, this collides with the critical case law, as a ruling by the Stendal District Court shows (LG Stendal, judgment of May 12, 2021 - Az.: 22 S 87/20).
The court ruled that the following was inadmissible advertising in the double opt-in email:
"Welcome to XY"
and
"Do you have questions about the newsletter? Contact us at: info@XY.de"
and
the use of the company's own logo in the double opt-in email.
Abstract starting point
According to the general legal view, the term advertising encompasses all measures undertaken by a company that are aimed at promoting the sale of its products or services. This includes not only direct product-related advertising but also indirect sales promotion, for example in the form of image advertising or sponsoring.
Reasons for the judgment
Measured against this broad definition of the term "advertising", the elements of the disputed confirmation email mentioned above were of an advertising nature, the court ruled.
"The logo and the inviting slogan 'Welcome to XY' are likely to draw attention to the 'XY' brand in a memorable way, other than by simply stating the sender, and to generate customer interest that promotes sales.
But the addition "Do you have questions about the newsletter? Contact us at info@XY.de&ldquo" also has an indirect promotional effect, since it offers a service that aims to acquire new customers. This advertising effect is all the greater for an addressee who comes into contact with the defendant for the first time through the confirmation email, since the input of his email address on the defendant's website was not initiated by him.
The court also emphasized that there is no de minimis limit. Even "a little" advertising in an e-mail without prior consent is simply not permitted.
Scope of application
It should be noted that the critical view of email advertising is independent of whether the addressee is a consumer or, as in the present case, a business owner.
Conclusion
When designing e-mails to third parties, as long as there is no confirmed advertising consent, you should think again very carefully about what could be interpreted as advertising elements of an e-mail by a business owner. As a precaution, these should be avoided.
Outlook
If you think about the ruling and its basis, you could recognize advertising in all sorts of other forms that you find in e-mails.
For example, the legally required order confirmation is not allowed to contain the logo of the online shop if consent to advertising (secured by means of a double opt-in) has not been obtained beforehand. A note in the footer of an e-mail referring to several company locations could also be considered advertising, because in doing so, the entrepreneur is showing how large his company is in a promotional way.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.