Last reviewed:
Translated from German; if the versions differ, the German version applies.
Email marketing law
In Germany, three sets of rules above all deal with advertising by email: the UWG (the German Act against Unfair Competition, Gesetz gegen den unlauteren Wettbewerb), the EU General Data Protection Regulation (GDPR) and the DDG (Digitale-Dienste-Gesetz, the German act on digital services). The table brings together key passages; the sub-pages quote them in more detail. Quotations from German laws, court rulings and authority papers are our working translations; only the German wording is authoritative (see the German version of this page). GDPR quotations follow the official English text.
| Provision | Wording (extract) | more |
|---|---|---|
| UWG, Section 7(2) no. 2 | “An unacceptable nuisance is always to be assumed […] in the case of advertising using […] electronic mail without the prior express consent of the addressee” (our translation) | Double opt-in |
| UWG, Section 7(3) | “By way of derogation from subsection 2 number 2, an unacceptable nuisance is not to be assumed in the case of advertising using electronic mail if […]” (followed by four conditions; our translation) | Existing customers |
| GDPR, Art. 7(1) | “Where processing is based on consent, the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data.” | Double opt-in |
| GDPR, Art. 21(2) | “Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing […]” | Unsubscribing |
| DDG, Section 6(2) sentence 1 | “Where commercial communications are sent by electronic mail, neither the sender nor the commercial nature of the message may be disguised or concealed in the header and in the subject line.” (our translation) | Sender, subject line, labelling |
| UWG, Section 5a(4) sentence 1 | “A person also acts unfairly who does not make the commercial purpose of a commercial practice recognisable, unless it is immediately apparent from the circumstances […]” (our translation) | Sender, subject line, labelling |
What the Federal Court of Justice said about proof of consent
On 10 February 2011, Germany’s Federal Court of Justice (Bundesgerichtshof, BGH) decided a case of telephone advertising to consumers (I ZR 164/09). Headnote 2 reads:
“To prove consent, it is necessary for the advertiser to document the specific declaration of consent of each individual consumer in full, which, in the case of a declaration of consent transmitted electronically, requires that it be stored and can be printed out at any time” (our translation) — BGH, judgment of 10 February 2011, I ZR 164/09, headnote 2 (para. 31)
The German Data Protection Conference (Datenschutzkonferenz, DSK), the body of the German data protection authorities, refers to this judgment in its guidance on direct marketing and writes on the double opt-in procedure:
“For consent declared electronically, the double opt-in procedure is required to verify the declaration of intent of the data subject, whereby the BGH’s requirements of proof under the UWG (judgment of 10 February 2011 - I ZR 164/09) are to be taken into account in the logging. […] To prove consent, it is necessary for the controller to document the specific declaration of consent of each individual data subject in full.” (our translation) — DSK guidance on direct marketing (February 2022), section 3.3, pp. 11–12
Is a club newsletter advertising?
In section 1.1 of its guidance, the DSK explains the “concept of advertising within the meaning of the GDPR” (our translation):
“The courts also base their decisions on this far-reaching view of advertising and thus also regard, for example, satisfaction enquiries to customers after a transaction, birthday and Christmas mailings etc. as advertising. On the other hand, advertising is also contact made by parties, associations and clubs or charitable and social organisations with data subjects in order to make their aims known or to promote them […]” (our translation) — DSK guidance on direct marketing (February 2022), section 1.1, p. 3
Section 7(1) sentence 1 UWG reads: “A commercial practice by which a market participant is unacceptably harassed is not permitted.” (our translation) Section 2(1) no. 2 UWG defines the term “commercial practice” as “any conduct by a person for the benefit of their own or another business before, during or after the conclusion of a transaction which is directly and objectively connected with promoting the sale or purchase of goods or services or with the conclusion or performance of a contract concerning goods or services” (our translation). Whether a club’s newsletter falls under this is not expressly answered by the law or by the authority papers quoted here.
Important
These pages reproduce statutes, court rulings and authority papers verbatim and do not classify them themselves. They contain no legal assessments or recommendations of their own; where the quoted sources do not expressly answer a question, this is stated. They are no substitute for legal advice in an individual case. The original texts are linked in the list of sources. Status: see the date of the last review.