I generally like tabulated summaries. However, sometimes they tend to provide dangerous superficial knowledge. One example is the new “International Email Privacy & Consent Guide” from act-on (right figure), which is to provide an overview of the quite heterogeneous anti-spam law landscape. I don’t think it does. But decide for yourself…
Consider the row for Germany:
- “Express opt-in consent required? Yes”. Wrong.
While this is certainly true for most cases, it does not necessarily apply always. One exception occurs within the context of an existing customer relationship. No opt-in is needed if (1) you obtained the customer’s electronic mail address in connection with a sale of goods or services, and you use the address for direct advertising (2) of your own (3) similar goods or services, and (3) the customer has not objected to this use, and the customer has been clearly and unequivocally advised, (4) when the address is recorded and (5) each time it is used, that (6) he can object to such use at any time, (7) without costs arising by virtue thereof, other than transmission costs pursuant to the basic rates.
- “Opt-in Time Limit: Forever until withdrawn”. Wrong.
An opt-in can expire during long time non-use. For instance, the Munich I regional court ruled that a given consent is no longer valid, if 5 years have passed between opt-in and the first email. Other courts had cases of 2 and 10 years.
- “Time limit to process opt-out: Two weeks”. Wrong.
There is no time limit. If a consent has been withdrawn, there is no legal basis to continue sending commercial emails. It has to be processed immediately. Therefore, many suggest to refrain from sending an opt-out confirmation via email. Instead, confirm it on the web page.
- “Physical address required: Yes”. True.
This is true. The safest way is to include a full HTML-text imprint in every email. Because then, it can be accessed all time without any barriers. However, it may also be possible to provide an imprint by placing just a hyperlink. There is no court ruling, yet.
Tip: If you need a quick legal overview of international anti-spam laws, you might want to look into the free eBook from the Certified Senders Alliance.