To whom may I send advertising by email or post? Opt-in for emails vs. opt-out for direct mail
The time of advertising by direct mail is over, many would say. The fight is over, one might think. But one would be way off the mark. Admittedly, advertising by email has become an effective channel for attracting the attention of customers and prospects and increasing sales. However, addressed advertising by direct mail in particular can be a strong strategy, as it is more personal and can build trust in a company. Especially since legal regulations and associated risks are often neglected and not implemented in email advertising. This can quickly lead to a warning.
Email advertising or email newsletter
Since sending via the Internet affects the recipient’s personal rights, the courts have set high standards in this area.
Sending of email advertising only with prior expressed consent – opt-in
Prior to a sendout, consent must be given by an explicit act of the recipient. The recipient must act consciously and clearly. This is guaranteed by the opt-in procedure. In doing so, the user must become active and tick a checkbox. The opt-out procedure, i.e. checkboxes marked with a cross where the customer must first remove the existing cross, does not constitute consent and is therefore inadmissible. To ensure legal compliance, the double opt-in procedure is recommended, whereby the recipient receives a confirmation email after sending. This contains a link that adds the email address to the distribution list after activation. The respective consent must be logged. In addition, the recipient must be informed in the data protection declaration of the possibility of revocation at any time. The revocation possibility must also be announced directly at the registration. Only in exceptional cases is prior, expressly granted consent dispensable in the case of so-called direct advertising.
If recipients revoke their expressly given consent to receive a newsletter or object to receiving further direct marketing, this cancellation may not be ignored. Instead, the email address must be removed from the distribution list. If there is any ambiguity regarding the identity of an unsubscribe from the newsletter, companies must investigate who sent the unsubscription.
Due to the high requirements, the sender can quickly fall into a liability trap. The obligation to prove consent lies with the sender. Any doubts are at his expense. If there is a violation of the requirements, he can be punished or warned in accordance with data protection laws. Warnings are in the three-figure range.
Postal advertising – Opt-out
The basic advantage of postal advertising into the letterbox is that it is initially assumed that the recipient agrees to the mailing. At least until he or she has not objected to the delivery and thus the consent. This is the opt-out procedure, in which the recipient must always actively object to the mailing. Until then, postal advertising may be sent. Accordingly, the legal requirements for the sender are lower.
If a business relationship already exists, this is considered to be personally addressed advertising. A prior explicit consent as with email advertising is not required. These letters always end up in the mailbox because they are addressed directly. The postal operator is obliged to deliver personally addressed letters and thus also advertising. However, the recipient is free to object to the use of his or her own data for advertising purposes at any time, as the lawful use of data must also be observed when advertising by post. Information about this right must be provided and the objection must be observed.
Customer data of third parties
Data of potential customers from the list of third parties may also be used. It is independent of whether this data is provided against payment or free of charge. However, it must be ensured that the collection of the data used was lawful. The recipient must also be informed about the source of the data. Furthermore, it must be ensured that the recipient objects by registering on the so-called Robinson list. This list was introduced to prevent the recipient from receiving unsolicited advertising mail. Serious providers of addresses respect this and can provide information about the origin of the data.
Even if in cases of postal advertising the recipient must always object first and thus become active. Illegal advertising by post can also threaten the sender with a penalty in the form of an administrative fine or a warning. In these cases, however, the recipient must be able to prove that he or she had actively objected to the advertising.
And the winner is…
Both types offer certain advantages for the sender, especially email advertising can reach a large number of potential customers faster. However, the legal hurdles are much higher, and thus the risk of punishment. Advertising by direct mail has significantly fewer legal difficulties and can be more personalized. Above all, in today’s flood of emails, recipients more often understand a letter as a personal sign of an advertiser. However, in the end, each advertiser has to determine the winner himself.
The “Händlerbund” helps!
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