E-mail advertising: Strict requirements regarding consent

As we know, direct advertising via e-mail fundamentally requires prior consent of the recipient. The crucial question is how the declaration of consent must be designed to be legally valid. The Federal Court of Justice [Bundesgerichtshof (BGH)] recently confirmed the already applicable, strict regulations and decided that a preformulated declaration of consent to receive advertising e-mails is valid only if the advertised companies and their products and services are clearly specified (judgment of 03/14/2017 – file no. VI ZR 721/15). The addressee of the direct advertising must know specifically what is involved. He or she must be informed about the intended advertising measures in a transparent manner and know to which type of advertising and to which companies his or her consent refers.

Companies that address consumers or business partners based on an invalid declaration of consent can be sued for omission by (consumer) associations and the affected companies, and may be liable to pay costs. Strict verification of the declarations of consent that one uses is therefore essential - as is the subsequent careful handling with the addressees' personal data.