When it comes to the legal basis for sending emails, many marketers differentiate between two types of messages:
- commercial emails, which advertise or promote a commercial product, service, or content – e.g. a newsletter.
- transactional emails, which facilitate an agreed-upon transaction or update a customer about an ongoing transaction – e.g. an electronic receipt.
The first one, so the thought goes, needs a prior consent, the second one does not.
However, a new ruling by the German Federal Court of Justice shows how difficult it is to draw the line. At least, if you are sending emails to German email recipients…
On 9 May 2016, the plaintiff purchased a product from the defendant on Amazon’s Marketplace. She received a PDF receipt 15 days later, attached to an email. This email, against which the dispute was directed, must have looked as follows:
Note the satisfaction survey in that classic transactional email.
Now, the highest civil court decided that such a customer satisfaction survey is – in the legal sense – an advertisement. It’s widely known that the use of email for commercial purposes without prior consent is generally an infringement of the general right to privacy. And it doesn’t matter if the email – like in this case – is also used to send a receipt for a previously purchased product.
There was no consent. Which brings us to the soft-opt-in derogation for existing customers…
The court stated that the sender should have given the recipient the opportunity to object to the use of her email address for advertising purposes in advance, i.e. when collecting the email address. That’s one of the requirements mentioned in Section 7 (3) UWG, which is the national implementation of Article 13 (2) of the European ePrivacy Directive, soon to be replaced by the regulation. Otherwise, any interference is generally unlawful.
What does that mean for promotional elements in transactional emails to German customers?
Note that the court did not necessarily say this email would have been legit if the requirements of Section 7 (3) UWG were all met. In fact, one might argue that asking for satisfaction with the service is not an advertisement for a similar product, as required by the derogation. Instead, it’s just image advertising, which is not covered by that section.
There are different views among lawyers on how to interpret this. Some say, based on a soft-opt-in per Section 7 (3) UWG it’s likely ok to ask if a customer is satisfied specifically with the product that she bought; however, it would not be ok to ask for a general satisfaction with the company for instance.
In the end, the example shows how narrow the ridge is around placing any kind of promotional elements in transactional emails. If there’s no opt-in, it’s better to not touch that subject. Or to put it another way, make sure you collect email consents from all customers.