Legal Insights Vol. 2 - Advertising concept and permission
The Importance of Consent to and (Not) Advertising in Marketing Emails
The second in the series of webinars and workshops offered as part of the 2020 CSA Digital Email Summit took place online on 7 September 2020. The series of workshop on legal issues deals with the legal requirements for email marketing. The requirements of the GDPR and the e-Privacy Directive are presented in a practical manner and with reference to issues that have arisen in the context of certification and complaint procedures. Alexandra Koch-Skiba and Sebastian Fitting of the eco Complaints Office, and the CSA’s Astrid Braken took the attendees through legal issues related to permission and advertising in the context of email marketing.
What is permission?
Permission is always required when sending advertising emails. This can be based on the explicit consent of the user or on the fulfilment of certain legal requirements for exceptional cases.
What is the legal basis for permission?
There are two European legal frameworks in that govern permission for the sending of advertising emails: the e-Privacy Directive and the General Data Protection Regulation (GDPR). These are considered best practice, even if they do not apply world-wide.
What is advertising?
Advertising is any statement that directly or indirectly promotes the sale of a product or service. Any communication that does this requires permission from the recipient before it is sent. Always carefully examine whether your email includes advertising elements as this determines the legal basis for sending the email. Transactional emails, often triggered by actions of the user or specific business processes, must not contain even indirect advertising, as otherwise they also require permission.
Emails that introduce new features of e.g. a portal, so aimed at customer retention, are also considered to be advertising as they indirectly promote the product or service. The same applies to customer satisfaction surveys.
What is consent?
Consent must be active (e.g. no pre-selected checkboxes), separate, free (genuine free choice), informed (what will happen to the user’s data?), precise and must include a notice on how to revoke consent.
What exactly is meant by precise have been the subject of numerous recent court rulings. For example, only a small number of sponsors (up to eight – to stay on the safe side) can be included as recipients of the data. Sponsors can be other companies that will also be able to access the data provided by that particular record of consent. Just one click is needed for the short list of sponsors, they don’t need one each.
Another stumbling block is often how precisely an industry has to be designated. Car accessories and baby food are usually considered to be precise enough, but German courts have criticised designations such as financial services and pensions funds. CSA recommends being as exact as possible.
A customer relationship as a further legal basis
Another legal basis for sending marketing emails is having a customer relationship. This does not require a separate declaration of consent – if certain legal requirements are fulfilled. These are an existing customer relationship, the promotion of similar products or service only, and opt-out notice when collecting the data and in every email (and, of course, no earlier opt out!). There must also be an existing relationship based on a completed (and paid) sale. A customer who has put items into a shopping basket and hasn’t actually completed the purchase is not considered to be an existing customer.
Can consent and an existing customer relationship be combined?
Even though it is theoretically possible to send a newsletter based on an existing customer relationship, despite no explicit consent being given, it can lead to confusion and perhaps irritation if a newsletter is sent after e.g. an online purchase, even though the customer did not tick the check box subscribing to the newsletter. This is best avoided by putting a statement concerning the use of data based on the customer relationship next to the request for the newsletter consent. That way the data subject is clearly informed right from the beginning and also has the chance to explicitly request a newsletter or further advertising, and to explicit opt-out from further marketing emails based on the customer relationship.
Consent: B2B vs. B2C and from minors
One question posed during the Q&A session as whether there is a difference between B2B and B2C communication when it comes to consent. Usually there is no difference once personal data is involved; even business contacts must give explicit consent to receiving commercial emails.
Generally, the guardians of minors must give their consent for the use of personal data under the current legal framework.
What needs to be considered in opt-out notices and imprints?
To find out more about legal requirements for opt-out notices and imprints, sign up for the third Legal Workshop on 14 Sept. 2020. Make sure that your commercial emails are compliant with the CSA criteria and ask any questions you have related to these legal requirements.