Newsletters and email advertising are among the most important customer loyalty tools for many companies. They are cost-effective, fast, measurable and can be increasingly personalized. However, sending advertising emails is legally challenging. Companies must comply with both the competition law requirements of the Unfair Competition Act (UWG) and the data protection requirements, in particular the General Data Protection Regulation (GDPR).
A recent ECJ ruling (C 654/23) on electronic direct marketing strengthens the existing customer privilege, but does not change the fact that companies must carefully check the legal requirements and fulfill the accompanying GDPR obligations.
E-mail advertising: legal basis
Advertising by e-mail is generally only permitted if the recipient has expressly consented beforehand (§ Section 7 (2) no. 2 UWG ). The term “advertising” is interpreted broadly. It includes not only traditional product offers, but also image advertising, event information or editorially prepared newsletters.
Under data protection law, personal data is processed when sending newsletters, in particular email addresses, names and often also usage data such as openings or clicks. Companies must therefore clarify the legal basis on which this data is processed, what information data subjects receive and how consents, objections and unsubscriptions are documented.
According to current ECJ case law, the question of whether an advertising email may be sent is primarily governed by the specific advertising law. Section 7 UWG therefore remains the central starting point for Germany. The GDPR is also relevant for transparency obligations, documentation, data subject rights and the intended purpose.
Consent as a rule
The most legally secure way remains explicit consent. This must be voluntary, informed, specific and verifiable. The recipient must actively confirm that they wish to receive advertising by email. Pre-ticked checkboxes are not sufficient. The double opt-in procedure, in which the user repeats their registration via a confirmation link, has therefore proven its worth. Companies should document when, via which form, with which consent text and for which email address the registration was made. The consent text should clearly state who sends advertising, on which topics information is provided and that consent can be revoked at any time with effect for the future.
Advertising to existing customers without consent
An important exception is the existing customer privilege according to § Section 7 (3) UWG . Accordingly, companies may send email advertising even without express consent under strict conditions. It is necessary that the e-mail address was received in connection with the sale of a product or service. The advertising may only relate to the company’s own similar goods or services. In addition, the customer must be clearly informed of their right to object when the address is collected and in every subsequent advertising email. This exception is important in practice, but must be applied strictly. It does not permit general group advertising, advertising for completely different product areas, advertising for third parties or the use of purchased address lists.
Data protection obligations, tracking and personalization
Companies must provide transparent information even if they are permitted to send data. In particular, the data protection information must specify the controller, the purposes and legal bases of the processing, data categories, recipients and data subjects’ rights.
Tracking, segmentation and personalization should be examined particularly carefully. If recipients are assigned to certain groups based on their behavior or characteristics, this may constitute profiling. This is not automatically impermissible, but must be explained transparently.
Every promotional email must contain a simple unsubscribe option that works without login, media disruption or unnecessary hurdles.
Best Practice
Companies should understand newsletter marketing as a legal and technical process. Clear consent texts, a clean double opt-in, reliable documentation, functioning unsubscribe links, up-to-date data protection notices and verified contracts with newsletter or CRM service providers are required. Grown mailing lists should be checked regularly to ensure that a viable legal basis is documented for all recipients.
Conclusion
Newsletters and email advertising remain legally permissible and commercially viable. They regularly require prior consent. The existing customer privilege offers an important exception, but should not be overstretched. In this respect, email marketing is and remains an important instrument that can be implemented with clear processes, transparent information and clean documentation.
