Is double opt-in dead?

Last week, quite a few lawyers were more than surprised when they heard about a recent Higher Regional Court of Munich decision dealing with the question of how to get prior consent from recipients of advertising e-mails (decision of September 27, 2012, docket no. 29 U 1682/12). Before, the matter had seemed to be fairly settled but now new questions arise.Generally, you can’t send any e-mails containing advertising without having obtained the recipient’s prior express consent. Sec. 8 para 2 no. 3 of the German Law against Unfair Competition(UWG) reads: (2) Unconscionable pestering shall always be assumed in the case of … 3. advertising using an automated calling machine, a fax machine or electronic mail without the addressees prior express consent“. For advertisers and anyone desiring to start commercial communications via e-mail, this leads to the question of how such consent may be obtained.

Last year, the German Federal Supreme Court (BGH) seemed to have given an answer to the effect that relying on the widely used “double opt-in” procedure is from a legal perspective safe for the advertiser. Double opt-in means: the recipient first needs to tick a box in an order form or to complete a sign up form that she agrees to receive advertising via e-mail. Thereafter, she gets an e-mail to the address indicated in said form, with the request to confirm that she wants to receive advertising, usually by clicking on a link (the “confirmation request”). Only if she complies with this request, her e-mail address will be retained and used for advertising purposes. This whole structure is meant to ensure that it was indeed the address owner who had ticked the box, and not someone else. The advertiser thereby gains convincing evidence for the addressee’s express consent.

Clearly, the feasibility of this approach requires that the confirmation request be regarded as legal (rather than unlawful spam), even and in particular when the addressee was in fact not the one who initially signed up (because someone else used for whatever reason the recipient’s e-mail address) – the very situation the double opt-in approach is designed to address.

In the Munich decision mentioned above, the court came however to the opposite conclusion. Whether or not this is a sign of a generally strict approach or rather just the result of the case-specific fact pattern is unclear; the wording of the court opinion leaves room for either interpretation. Be that as it may, the facts of the case at issue provided for sufficient reason to decide against the defendant: The advertiser had not only failed to produce any evidence for the first e-mail having been requested by the address owner, but had apparently not even been able to demonstrate in detail how the sending of that e-mail had been triggered. Therefore, the court deemed the confirmation request unwanted and hence illegal.

This is a puzzling result. You should know that the plaintiff had in fact clicked on the confirmation request link – which rightly lead the court to decide that the following newsletter e-mails received from the defendant were perfectly fine and legal. Wouldn’t one think that the express consent given by clicking on that link would cover the confirmation request, too? Shouldn’t the court have discussed this? And isn’t it far too broad an interpretation of the term “advertising” (see sec. 7 UWG above) to include simple confirmation e-mails?

Where does all this leave us? Is double opt-in dead (I don’t think so.)? Are there ways to ensure that every confirmation request triggered in above-described ways conforms to German legal requirements? Could having detailed records of each sign-up incident (IP addresses, date and time, e-mail address concerned) make advertisers less vulnerable to assertions of unwanted confirmation requests (as suggested here and rejected here)? Nobody can tell for sure right now, but to me the Munich decision contradicts the more liberal tendencies expressed by the BGH in its afore-mentioned double opt-in decision. Unfortunately, it looks like there will be no appeal in the Munich case, which means that the BGH probably won’t be able to clarify the matter this time.

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