Note: the following information on the legal situation does not claim to be complete or accurate. If you have any questions, please consult a responsible lawyer.
Hardly any other medium makes it possible to publish opinions and events as quickly and cost-effectively as the e-mail. However, hardly any other medium is misused to such an extent to pester involuntary recipients. Those who send e-mail newsletters and mailing lists should familiarise themselves with telecommunication and data protection regulations in order to avoid expensive disputes.
In many countries, the sending of unsolicited e-mails ("spam") is a punishable offence. This includes, for example, the European Union. Particularly in Germany, the sending of spam is governed by paragraphs §§ 823 and 1004 of the German Civil Code. In Switzerland, according to a decision by the Schweizerische Lauterkeitskommission (Swiss Commission for Fairness in Commercial Communication), spamming is regarded as an aggressive sales method and is therefore generally unfair competition (Art. 3 lit. h UWG; source: SIUG/CH). Those who still send spam despite this must expect cautions and claims for competition.
E-mail marketing is only permitted if the recipient has previously given his or her explicit permission (permission marketing) or of a regular business relationship exists, based on which the advertiser may assume the permission of the recipient. This no longer applies, of course, if the recipient expressly opposes advertising being sent by e-mail (source: DDV e.V.). It is strongly recommended not to use bought or leased address lists. Instead, address generation should be carried out via the company’s own website, existing contacts (trade fairs) or advertising in the newsletters of others.
The address lists for e-mail marketing are subject to strict data protection directives. In Germany, in particular the articles of the TDDSG (Teledienstdatenschutzgesetz), MDStV (Mediendienste-Staatsvertrag) and BDSG (Bundesdatenschutzgesetz) are to be observed:
Collection of the data that is absolutely necessary for the service (newsletter). For personalisation, for example, the name, sex (for the salutation) and the e-mail address are sufficient.
Anonymous registration or pseudonym
Subscribers must be able to register anonymously (only with e-mail address), without having to supply other personal details.
Information, use of the data
On registration, it must be clear what happens with the data. For example, you must not forward subscribers’ details to third parties unless the subscriber has expressly permitted this.
Deletion of the data
Personal data are to be deleted as soon as possible, at the latest immediately after the end of their individual use or business relationship unless it is invoice data. In Germany, a business relationship is deemed to have ceased to exist after 6 months without contact.
Information of subscribers
Subscribers are entitled to request information free of charge on the data collected.
That all sounds very difficult, but with Inxmail it’s no problem: an appropriately designed registration form, which it is best to generate directly with the form assistant, allows for data minimisation, anonymous registration and the duty to provide information. The same applies to the duty of disclosure, for which a corresponding web page regulates everything. The obligation to delete the data can be carried out automatically with a corresponding setting in the registration agent.
For subscription to the newsletter, it must be ensured that the e-mail to confirm the registration does not contain any advertising. Otherwise, such e-mails could also be classified as spam and lead to legal problems.
This means tracking links, for example, and measuring the opening rate. In general, anonymous tracking that does not provide information on who exactly clicked and when is unobjectionable. Personalised tracking ("unique count" links, or use of the action agent in Inxmail), with which you could gain a detailed insight into the personal clicking habits of a recipient is only legal if the recipient has expressly permitted such measures. For example, during registration for the newsletter, you must inform the subscriber that you carry out such measures and why.