Email Newsletters – Double-opt-in double bind?
Following a controversial court decision, there has been some uproar recently in the German online industry and legal circles in regard to email newsletters. The Munich Court of Appeals has passed a ruling according to which even a formal newsletter confirmation email a may be considered illegal spam (OLG München, 27.09.2012 – 29 U 1682/12, link, see also Fabian Laucken’s German language article on the subject: Link). If this decision is taken literally, this could lead to the end of closed-loop email authentication for email newsletters and similar subscription services. This has naturally caused a heated debate.
To be sure, German law is rather strict regarding advertising by emails. To be lawful, advertising emails may only be sent to recipients, no matter whether private consumers or businesses, if the recipient has given his explicit consent. (With some exceptions in cases where business relations already exist.) Naturally, this can make direct marketing by email rather awkward. This is however the intended effect of certain legislation which is meant to protect consumers and businesses alike from prodigious amounts of spam. Any commercial enterprise which sends out emails for advertising purposes therefore has to make certain that the respective recipient has given his consent. Otherwise it must face the risk of costly cease and desist letters (another German law speciality), injunctions etc.
One way to ascertain the required consent is the closed-loop email authentication procedure. In this, if someone wants to subscribe to an email newsletter for example, he will enter an email address upon which an automatic email response is generated which is sent to said email address and which contains a hyperlink which must be activated by the recipient to confirm his identity and his willingness to receive the subscribed service. This is the well-established and effective method of confirming identity and consent in such cases and may be considered an industry standard.
Now, the Munich Court of Appeals has ruled that actually, if taken literally, the law against spam means that even such confirmation emails themselves must be considered spam. Ultimately, argues the court, they serve a commercial purpose themselves, therefore they must be regarded illegal spam as well.
According to the court, email newsletter providers must seek other ways to ensure the identity and consent of their subscribers. Now, this places email newsletter services in a double bind truly, because how are they to confirm a subscriber’s identity if they are effectively forbidden from asking him by email?
It will be interesting to see where this will lead.
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Date: January 2013
