Opt-in

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Opt-in (from English to opt (for something) , 'optieren', 'to decide on something') is an explicit consent procedure from permission marketing in which the end consumer explicitly makes advertising contacts - usually by email , telephone or SMS - beforehand must allow in writing.

A typical opt-in is, for example, the checkbox in the purchase process, in which you agree to the sending of an e-mail newsletter by ticking the box when shopping in an online shop. The consent to the setting of cookies , which website operators have to obtain from their visitors according to the European General Data Protection Regulation since 2018, is an opt-in.

Its opposite is an opt-out procedure, which in many cases is legally inadmissible : here, advertising contact is considered accepted as long as the consumer has not explicitly objected to it. When sending postal mailings , the opt-out is currently still the standard. Consumers can protect themselves from non-addressed advertising by placing a note on their mailbox (“No advertising”), which Swiss Post and other advertising mailing lists must observe. In addition, there is the possibility for consumers to be registered on the Robinson list.

Easy opt-in

A simple opt-in is given if the consent is given by marking a checkbox once or entering the email address or telephone number in a correspondingly labeled field or document - it must, however, be clearly stated in writing that an advertising contact is consented to .

A problem with a simple opt-in in the area of email marketing is that any contact information can be used for registration, including incorrect data or data from third parties or organizations. Since such incorrect or abusive entries repeatedly lead to problems and annoyance, the improved “double opt-in” procedure was developed. This is not legally mandatory, but for the reasons mentioned, it is increasingly required by case law. There is also a kind of confirmation of consent for the telephone by means of telephone verification .

Confirmed opt-in

With the "Confirmed Opt-In", a confirmation e-mail is sent to the registered e-mail without a confirmation link. The consent given to the advertising contact takes effect immediately. The consumer would have to object to this email in order not to receive any unsolicited advertising. The term is sometimes misused by spammers . For example, some spammers use "confirmed opt-in" when a new recipient of a newsletter subscription receives an email after registration, in which he is informed of the subscription that has just been made and is informed about it. how he can end the subscription.

Double opt-in / closed-loop opt-in

With “double opt-in” (also known as “closed loop opt-in”), the entry in the subscriber list must be confirmed in a second step. Usually an e-mail is sent to the contact address entered with a request for confirmation. This message is also known as “DOI-Mail” or “Checkmail”. If it is a real, i.e. a desired, opt-in, the subscriber receives a confirmation of the contact details provided. If, on the other hand, the entry is improperly made, the involuntary subscription candidate can protect himself from an entry in the subscription list by not responding to the confirmation request. A registration with the “double opt-in” only becomes effective when it is confirmed. This procedure has meanwhile established itself in e-mail marketing in Germany and is mainly used for address generation by professional senders. The company that offers this procedure logs these steps so that it can later be proven whether and when the permission was granted. This procedure prevents a third person from entering their own e-mail address in a newsletter and thus receiving unsolicited advertising.

In addition to the above-mentioned way, procedures in which the confirmation is made, for example, in writing by post, by telephone or by bank transfer, can be used as confirmation.

This method is recommended for serious email marketing by various organizations such as the German Dialog Marketing Association (DDV). The BGH stated that the double opt-in procedure is suitable to facilitate the presentation and proof of consent to the receipt of advertising emails.

Legal position

Germany

In Germany, certain advertising measures are only permitted with given or presumed consent . This is primarily regulated in the Act against Unfair Competition , Section 7, Paragraph 2, Numbers 2 and 3 of 2004.

According to Section 7 (2) of the Act against Unfair Competition (UWG), it represents an unreasonable nuisance for the consumer if he receives advertising by e-mail or telephone without his prior express consent. If the advertiser contacts a consumer without their advertising consent (“opt-in”), this constitutes a violation of competition law. This applies to both the e-mail and telephone channels. No advertising consent is required for post, although this was often discussed in the context of the 2008 data protection amendment.

There is no legal obligation to use a closed-loop opt-in . However, the problem arises for the advertiser that the once declared (single) opt-in could come from a third party. It is possible that he knows the owner of the incorrectly given email address and wants to harass him. Then the person actually advertised is not bound by the opt-in. It does not matter that the advertiser was also deceived, because his fault does not matter.

In order to avoid this problem, double opt-in is therefore often chosen: Here the advertiser can be sure that the consent to the sending of the e-mail actually comes from the account to which the advertising e-mails will later be delivered. The inquiries required for the double opt-in have recently been frequently viewed by courts as not being anti-competitive .

To date, there is no uniform case law. Every (even wanted) delivery remains subject to a residual risk. The tendency of the court judgments seems to be more towards the admissibility of sending the confirmation link in the case of double opt-in.

The Munich District Court confirmed in 2006 that e-mails with a request to confirm the entry in a mailing list were not spam , because it was reasonable for the recipient to force the automatic deletion of their own e-mail address from the mailing list by doing nothing and waiting . The judgment is final.

The Hamburg Regional Court ruled in 2008 about the retention period of a declaration of consent under data protection law, i.e. an opt-in declaration. The regional court was one of the first to comment on the question of how long a declaration of consent under data protection law can and must be kept. The judges ruled that as long as a user or address owner had to expect to have to prove the existence of consent, he must and should also save the relevant data. The judges set a deadline of three years with reference to Section 11, Paragraph 4 UWG .

The Federal Court states in its judgment of 10 February 2011 (Ref .: I ZR 164/09) states: "An electronically-run double opt-in method is unsuitable for secured consent for telemarketing calls." The verification of the called party must therefore take place through a multi-stage process.

With the judgment of September 27, 2012 (Az. 29 U 1682/12), the Munich Higher Regional Court decided that an email requesting confirmation of a (newsletter) order in the double opt-in procedure as advertising can fall under the prohibition of § 7 Paragraph 2 No. 3 UWG. The decision should also be questioned critically in connection with the BGH decision “double opt-in procedure”. The appeal to the Federal Court of Justice was approved with regard to the question of whether and when such a confirmation email has an advertising character. The decision is critically assessed or rejected in the legal literature. A so-called “confirmation request” in the automated “double opt-in procedure” does not yet represent advertising under certain conditions.

Switzerland

In Switzerland, since April 1, 2007, according to the Federal Act against Unfair Competition Art. 3, Para. O, it has been forbidden to send mass advertisements without direct connection to the requested content, unless the recipient's consent has been obtained beforehand correct sender is not specified or a problem-free and free rejection option is not pointed out. However, there is no express obligation to use a double opt-in . In the course of the EU GDPR , which has definitely been in force since May 25, 2018 , the opt-in procedure should be checked and extended to double opt-in in order to be able to prove the consent of the recipients (especially recipients from the EU area).

A.) E-mail marketing or e-mail advertising to potential customers is permitted if the following requirements are met:

  1. The addressee has previously, i. H. prior to the actual receipt of an electronic advertising message, expressly given his consent to receive it.
  2. The sender is clearly identifiable.
  3. The recipient is given the opportunity to forego advertising mailings from this station in the future. The unsubscribe option should be able to be triggered easily and without additional costs for the recipient.

B.) E-mail marketing or e-mail advertising to your own (existing) customers is permitted under the following conditions:

  1. There must be a connection between the service received at the time and the newly advertised service.
  2. No third-party services may be advertised. Points 1 and 2 also apply under point A.)

Compliance with the above points are the minimum basic requirements for direct mail in electronic media.

Europe

With a ruling of October 1, 2019 on the interpretation of the so-called cookie directive, a supplement to the European data protection directive for electronic communication , the European Court of Justice ruled that even when storing and retrieving so-called tracking cookies on the computers of website visitors, an unrestricted EU-wide There is an opt-in obligation. Specifically, the case passed on to the European Court of Justice by the German Federal Court of Justice with a request for legal interpretation concerned whether consent to the use of cookies can be granted in compliance with data protection regulations by means of a checkbox with a pre-set checkmark (the need on the part of the Internet user to activate the checkmark if they do not agree to remove corresponds to an opt-out), which the ECJ denied. The legal dispute existed between the German Federal Association of Consumer Associations and the online competition organizer Planet49 ; however, the judgment is of fundamental importance.

See also

Web links

Individual evidence

  1. ↑ Dorothée Schmid: General Data Protection Regulation: Website operators have to change that now. Impulse , May 25, 2018, accessed November 8, 2019 .
  2. ↑ Robert Rebholz, Sebastian Wiege: DSGVO: What you have to consider with postal mailings. onlinemarketing.de, May 4, 2018, accessed November 8, 2019 .
  3. ↑ Dialer, cold call, spoofing? Tellows explains the most important terms | Tellow's BlogTellows Blog. Retrieved on July 9, 2018 (German).
  4. ^ BGH, judgment of February 10, 2011 - I ZR 164
  5. ↑ AG München 161 C 29330/06, MMR 2007 473rd
  6. ^ LG Hamburg: Ref .: 312 O 362/08 , December 23, 2008. In: openjur.de .
  7. ↑ OLG Munich, judgment of September 27, 2012-2029 U 1682/12, MIR 2012, Doc. 49 = openJur 2012, 130663 .
  8. ↑ Gramespacher, WRP 2013, 113 ff. - Commentary on the decision with further evidence (PDF; 129 kB)
  9. ^ Jörg Eugster: Registration and deregistration procedure ( Memento from July 13, 2011 in the Internet Archive ). In: The Online Marketing Book. How do you get customers off the internet?
  10. ↑ cf. UWG (federal law against unfair competition). Swiss SME Association, accessed on June 7, 2019.
  11. ↑ The setting of cookies requires the active consent of the internet user - a pre-set checkbox is therefore not sufficient. (PDF) Press release No. 125/19 of the Court of Justice of the European Union. curia.europa.eu, October 1, 2019, accessed November 8, 2019 .
  12. ↑ Cookie ruling strengthens digital privacy. vzbv.de (Federation of German Consumer Organizations), October 1, 2019, accessed on November 8, 2019 .