E-mail marketing: How to design your newsletter in accordance with legal requirements

Newsletters and mailings are still among the most successful advertising products for companies. There are numerous legal pitfalls in e-mail marketing, however, many of which can result in the consignor receiving a caution. activeMind will help you ensure your mailings and newsletters are legal.

Mailings for an integral part of the marketing mix in modern companies. Almost no other tool is better suited to getting in direct contact with your customers and keeping them informed about your products on a regular basis. Before you start creating or sending out your newsletter or advertising mailing, however, you should ensure intensive examination of the legal regulations and clarify some relevant questions – for example: when can your mailing be sent out? What can it contain? And what content must be included as a legal requirement?

Tip 1: Newsletters are legally compliant only if they adhere to the double opt-in process

In Germany, something known as the “opt-in process” applies when sending mailings. In accordance with this process, the recipient must explicitly agree to contact via e-mail – and do so actively. This means that if consent is obtained electronically via a checkbox, this must be empty when the page is called up – the recipient themselves must actively participate by placing checkmarks in the appropriate boxes. In addition, you must ensure that the wording of your text for obtaining consent is clearly understandable, and thus that your recipient knows exactly what they are doing.

This goes one step further, however: in case of doubt, you must be able to prove that consent has actually been given by the e-mail recipient – not by another person. This is where the so-called double opt-in process comes into play. After a recipient agrees to receive your mailings and has entered their e-mail address, you will send the person an e-mail. This e-mail will contain a confirmation link – only once the individual has provided confirmation will their address appear in your e-mail distribution list. This ensures you remain on the right side of the law.

Tip 2: Only advertise your own and similar products

When it comes to advertising e-mails, the legal situation is very clear: you may only advertise your own products which, in turn, are comparable to those that your customer has already purchased. Admittedly, this rule seems to require interpretation: what is the use of an advertising e-mail in which you can only present similar products to your customer – which they may have purposefully avoided in a previous purchase decision? Surely it would make more sense to also include products that your customer might be interested in? The problem is that most courts adhere to a very narrow interpretation of the similarity concept. When choosing the products to advertise, therefore, it is important to be very careful.

On the other hand, you have much more room for manoeuvre when it comes to designing your newsletter. As long as your recipient has subscribed to the newsletter independently, almost anything goes with regard to content – provided you explain this to your recipient at registration.

Tip 3: Comply with statutory disclosure duty

Certain elements of your advertising e-mail or newsletter fall under the duty of statutory disclosure and are therefore mandatory. Particularly important is the legal notice, in which you inform your recipients about your company. In order to save space, you can also link to the legal notice on your website in your e-mail, provided the link is clearly visible as a legal notice link. In addition to this, you must also include a link to your privacy policy. Note: if a newsletter is subscribed to via a registration form on your website, this must also link to your privacy policy. Your advertising e-mail must also contain an unsubscribe link that allows the person to unsubscribe from the mailing list. Tip: Design the links so that they are easily visible by your recipients.

White paper recommendation on designing legally-compliant e-mail marketing and newsletters

More information and practical tips can be found in the white paper from the experts at activeMind (www.activemind.de) “Legally-compliant E-mail Marketing”. This document offers practical help around the legal pitfalls of e-mail marketing, laid out in five concise chapters. Interested parties can download the free white paper here: https://www.activemind.de/datenschutz/dokumente/e-mailmarketing/