When should you use a cold email

Legal situation for B2B e-mail advertising - legal principles and tips


E-mail advertising is quick and doesn't require as much courage as a phone call to a strange company. One often hears: “In my industry, email advertising is better suited to acquiring new customers than telephone acquisition.” At the same time, many still assume that email advertising is not as annoying to their recipients as a phone call. But is it really like that? In fact, the legal situation for e-mail advertising is stricter than that for telephone acquisition - even in the otherwise less regulated B2B area.

Email advertising - legal situation: it's better to call than write

"When it comes to acquiring new commercial customers, entrepreneurs should actually rely better on the phone than on email advertising," says lawyer and data protection expert Jutta Löwe. Email advertising is only permitted for existing customers if the advertiser observes the following requirements:

  • You have received the electronic mail address from the customer in connection with the sale of a product or service.
  • You have used the address for direct marketing for your own similar goods or services.
  • The customer has not objected to the use.
  • When collecting the address and each time it was used, the customer was clearly informed that he can object to the use at any time.

Email advertising: double consent procedure required

Otherwise, neither customers nor consumers may be contacted via email advertising. The law against unfair competition (UWG, Section 7, Paragraph 2, No. 3) stipulates that recipients must have expressly consented to the delivery beforehand. The so-called double consent procedure (double opt-in) is provided for this purpose. In a first step, the interested party enters their email address in a registration form and sends it. He will then receive an email with a confirmation link at the address given in the form. Now he has the opportunity to declare a second time that he would like to receive e-mail advertising in the future. If the recipient does not react within a few days ("time out") by clicking on the link, no further emails may be sent to him.

There is a reason why the legislature makes e-mail advertising more difficult: “Most people find e-mail spam unbearable,” explains Jutta Löwe. In addition, unsolicited e-mail advertising used to be a real annoyance and a frequent cause of complaints in court in view of the low bandwidths, the lack of flat rates and inadequate spam filters. Today the technical framework is better, but the legal situation has tightened. Even if:

  • Company addresses
  • own prospect addresses
  • own competition participant addresses
  • Addresses from public directories
  • rented consumer addresses by way of transparent use or
  • Purchased consumer addresses by means of transparent transmission

should be used and thus no consent would be required under data protection law, the legal situation still requires consent for the advertising channel.

Telephone acquisition: inform customers in a legally secure manner

Companies are therefore well advised to use other channels than e-mail advertising in the B2B area - for example, telephone acquisition, which offers many opportunities for new customer business built up internally. Here, too, you should note: According to the UWG, you may only send the customer information material by e-mail afterwards if he has expressly agreed to this in the telephone conversation.

If in doubt, employees should have the customer's request confirmed again in writing. In practice, however, you can assume that no customer who has given their consent on the phone will issue a warning when they receive information from you. You can find out what still needs to be considered in relation to the legal situation regarding telephone acquisition in our blog article "The legal situation regarding telephone acquisition".

Case study - email advertising

A colorful mailing flashes towards you from the “Bla Bli Blup Media Agency” (name changed). "We are unrivaled in ..." and then a list of different marketing services follows. A strange note in the binder:

“This message is not an offer under Article 66 of the Civil Code. This message was sent by the Bla Bli Blup Media Agency to the e-mail address provided, which is considered an e-mail address of the entrepreneur in accordance with Art. 43 [1] of the Civil Code and comes from the database of the company Kompass, which belongs to the company Compass International based in France is owned. In this regard, this message is not an unsolicited commercial business transmission according to the provisions of the law on electronic services. "

Apart from the spelling mistake, is that serious? A question to lawyer Jutta Löwe results in a clear no: “According to the current legal situation, the reference is nonsense. In addition, there is no civil code, and the BGB - if it is meant - has no articles but paragraphs. ”E-mail advertising - please do not.