Email marketing or push notifications - what's better?
This question is asked by many webmasters and advertising departments. But where is the difference?
E-mail marketing
Newsletters are a popular way to reach customers. But legally there is a lot to consider. Consent to receive newsletters is already a highly sensitive issue. With its judgment of March 14.03.2017th, 721, Az.: VI ZR 15/XNUMX, the BGH clarified some things with regard to consent to e-mail marketing.
- The advertising e-mail sent without effective consent to a business e-mail address constitutes an interference with the law of the established and practiced business enterprise (continuation of BGH, U. v. 12.9.2013 - I ZR 208 / 12 [= MMR 2014 , 250 - Referral Email]).
- Effective consent to the receipt of electronic mail for advertising purposes requires, among other things, that the addressee knows that his declaration is in agreement, and that it is clear which products or services of which company they specifically cover. A pre-formulated declaration of consent must be measured against §§ 305 ff. BGB (continuation of BGH, U. v. 25.10.2012 - I ZR 169 / 10 [= MMR 2013, 380 with note Eckhardt - Consent to Advertising Calls II]).
- On the applicability of § 28 para. 1 No. 2 BDSG, if the person obliged to refrain from advertising by electronic mail wants to use the e-mail address of the person concerned against his will to forward it to his advertising partners for deletion or blocking purposes.
(ZD 2017, 327, beck-online)
What does this case law mean for newsletters?
It means that the customer's consent to receive newsletters, for example, is based on the general provisions on general terms and conditions in accordance with §§ 305 ff. BGB. For example, the wording “you receive interesting offers” to describe the subject of the future newsletter would be ineffective in accordance with Section 307, Paragraph 1, Sentence 2 of the German Civil Code (BGB), since customers cannot see what the advertising is about.
Another example of an inadmissible consent to the receipt of advertising, the OLG Cologne with judgment v. 23.11.2007, Az .: 6 U 95 / 07 seen in the following formulation:
"I agree that my contract data will be used by the companies of the EU AG group for customer advice, advertising, market research and needs-based design of the services I use. (My contract data are the data required for the mutual fulfillment of contract [contract conclusion, amendment, termination, billing of charges] and voluntarily given [delete entire paragraph, see also Privacy Policy in the attached Terms and Conditions for the mobile service UN]) . "
In the present case, the point was that a company wanted to use the customer data of its raffle participants for other purposes, which have nothing to do with the actual raffle. Such a coupling violates several laws. For example, against the coupling ban of the DSGVO.
You should therefore check your texts for the approval of newsletters or present them to a law firm specializing in IT law.
Does the GDPR have special effects on newsletters?
Yes, the GDPR is important in two ways.
- A consent in the receipt of newsletters gem. Art. 4 No. 11 DSGVO largely corresponds to the definition in Art. 2 lit. h of Directive 95 / 46 / EC. Thus consent forms according to the old legal situation are almost identical to those since the entry into force of the GDPR.
- The regulations for e-mail advertising established in § 7 UWG are based on the guideline 2002 / 58 / EG. As a result, the GDPR does not supplant the provisions of § 7 UWG.
Push notifications
Now the question arises as to how push notifications behave in contrast to traditional email marketing. The advantage of a push notification is very clear. This is pushed directly onto the screen of a smartphone, tablet or notebook, without first and automatically landing in the SPAM folder.
But what should be considered with push notifications?
The information requirements are the same as in conventional email marketing. So you have to inform your customers in a clear, simple and unambiguous way that you want to send them such messages.
Unlike the newsletter registration, however, there is technically (still) no possibility of a double-opt-in, so that it could be easier to provide clients with legally compliant advertising. In addition, there may be some facilities for unsubscribing push notifications. After all, customers can also carry out the so-called opt-out directly on their terminal without the hoster having to be active.
If you have any questions about the legally compliant handling of e-mail marketing or push notifications, then ours Attorney Stephen Hendel gladly available.
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