E-mail advertising is a very inexpensive marketing instrument, which admittedly is subject to quite strict legal regulations and requirements. For instance, in principle advertising per e-mail is only allowed when the addressee has expressly granted permission to the company before receiving commercial e-mails. So what is the legal stand when advertising also appears in the service e-mail?
E-mail marketing only allowed with the recipient’s permission
Advertising e-mails are only admissible when the advertising company possesses the explicit permission of the addressee. Hereby there is no difference whether the contacted recipient is a private person or a company. 
This consent ensures that addressees are not importuned massively and unreasonably, due to unrequested advertising. Even if it is only to delete such e-mails, customers must deal with all of them. Should the addressee’s consent not be available, advertising e-mails can only be sent to existing customers if the conditions of § 7 Par. 3 Nr. 1 – 4 of the German law against unfair competition (UWG) are met. Marketing in notifications of dispatch, order confirmations or other service e-mails is not always permissible.
These service e-mails are mainly used in e-commerce. As a rule, automatically generated e-mails are concerned here, whose creation and distribution is activated by a particular customer transaction. In most cases, this concerns the distribution of the following e-mails:
Order confirmationsFulfilment confirmationsInvoicesShipping notices
The service e-mails all have one thing in common: They have a high opening rate of up to 80 percent, which makes them so interesting for marketers. Because of the time customers spend on them. This becomes particularly clear in the case of an invoice, which triggers a further transaction in the form of payment by the customer.
Use service e-mails for up-selling and cross-selling
Marketing experts often use service e-mails in order to inform customers about new offers and products – the so-called cross-selling. They want to take advantage of the fact that customers are in rather positive frames of mind and as a rule are open to further products.
The same is also true for products that are more expensive and of higher quality – up-selling. These products are also worth advertising in a transaction e-mail, to selectively incite customers to buy. Are such advertising e-mails admissible at all, since advertising can only be included if the addressee has explicitly given prior consent to receiving advertising by e-mail?
Advertising in transaction e-mails must not be in the foreground
For service e-mails, the consent does not apply, since the recipient is not unreasonably molested by it, because he must anyway deal with these e-mails. As such, it does not matter at all, whether the service e-mail contains advertising or not. If emphasis is given to the transaction e-mail itself and it is solely accompanied by advertising, then this is not a matter of inadmissible nuisance as a rule. In such cases the actual motive for the e-mail can be identified without any doubt and the advertising takes a back seat.
If there is already a business relationship with the customer, then commercial e-mails are admissible even without prior consent of the addressee. In such cases however, legislative authorities have created strict stipulations within the law, against unfair competition. These are:
- The customer has given his e-mail address in connection with the purchase of a product or service.
- This e-mail address is also used for offering your own products/services or for your own direct mailing.
- There is no objection regarding the use of the e-mail address.
- It was pointed out to the customer, clearly and explicitly, upon collecting the e-mail address as well as upon every further use of it that he can object to it at any time afterwards.
Conclusion: If companies pay attention to all of the points mentioned previously, they can also send their commercial e-mails without obtaining the customer’s explicit consent, as long as the advertising remains within limits. In such cases, you also do not commit any violations of the competition law.
Frank Große
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