A proper address database can’t be achieved overnight, but requires patience and know-how, especially from a legal point of view.

And indeed, necessary knowledge about the legal framework and the development of an appropriate strategy to generate subscribers the legal way should be on top of your list. Let me give you some useful information on how to have an exemplary mailing list using the most efficient medium for your marketing activities without consequences.

Terms and conditions of consent

In many countries, the sending of commercial e-mails and newsletters is subject to prior consent. Sending out without consent is regarded as an unfair act to other market participants and as harassment of the e-mail recipients. Fundamental for the development of a newsletter distribution list in such countries is therefore the so-called "opt-in" rule, where the explicit consent to receive e-mails is needed, before sending out any information. Consent is explicit when it was caused actively, which means by any action of the interested parties, such as check-marking a tick in the registration form or in a fax reply. Furthermore, the permission must be given deliberately to be definite. Thus, it is not enough to safeguard this by clauses in the terms and conditions or in low-contrast flow text. Instead, when logging on, the topic and appearance of the newsletter should be communicated transparently as far as possible. In addition, the consent must be obtained detached from all other agreements, which means through a separate checkbox.

Beyond the explicit consent, there are cases where you may assume consent: the so-called alleged or implied consent. If you have for instance sold a person some goods or services, you are permitted to send your advertisements for similar goods and services from your inventory, too.

Besides this exception, there are other individual decisions in which an e-mail recipient must, for example, expect that he receives some e-mails due to his business. But to avoid legal uncertainty associated with the presumption of consent, you should always try to obtain permission explicitly.


Forms of electronic consent

There are different types of electronic consents: opt-out, opt-in and double opt-in. Banned in most European countries is, for instance, the opt-out process, which is however widely allowed in many countries in Asia as well as in the United States. The marketing-friendly opt-out approach assumes as a start that the e-mail receiver gives his consent. The user can abrogate by un-checking an automatically set tick in the application or by clicking on the unsubscribe link later in the e-mail.

In the single-opt-in procedure ("simple entry") a visitor puts down his e-mail address in your online newsletter registration form. The only problem here is that nobody can really know for sure if the owner of the e-mail address or a third party has registered it, which would possibly annoy the owner who considers the message as spam. Thus, the confirmed opt-in process ("confirmed registration") completes the single-opt-in with a confirmation e-mail that states that the registration in the newsletter mailing list has been done and eventually asks for a confirmation. If someone else has registered the address, the owner gets a second chance to unsubscribe again or simply rejects the required confirmation. However, in this case, the welcome e-mail is already considered to be spam.

Well, it seems that this procedure is too complicated and makes e-mail marketing hostile, as countries in Asia usually go with the opt-out or single opt-in procedure, despite the mentioned problems.

Indeed, the legally safest option is the double opt-in, where the prospect receives an activation e-mail upon registration in which he has to click again on a confirmation link to confirm the newsletter subscription. If there is no confirmation, the addressee receives no e-mails anymore. The advantage here is that since only the true owner of the e-mail address can confirm it, spam will be effectively prevented. The disadvantage is that the growth of your distribution list may suffer. Consider as well that the activation e-mail can’t be delivered (spam filter), the confirmation link is not clickable (for example, by a line break in the link), the e-mail confirmation gets forgotten or the process not understood at all ("Why should I register twice?").

Point out specifically during the registration that the newsletter subscription and activation e-mail will still follow so that it becomes effective in order to prevent abuse. And even mention that the activation e-mail may mistakenly end up in the spam folder. The activation e-mail should contain no advertising, but instead again the details of the agreement including newsletter topic and frequency, data protection und termination for convenience, so that the consent takes place intentionally.

In general, your newsletter service should be able to be used anonymously and if possible, you should collect not more personal information as really necessary for the dispatch ("data parsimony command"). Therefore, only the e-mail address should be mandatory when registering a newsletter. All other personal data must be voluntary, in which each of the intended purpose should be included, for example, salutation and name for a personal address or postal code for special offers from the nearest store. In addition, there should be placed a note on your privacy statement when registering for the newsletter, which communicates the processing and use of the stored data to the subscriber and his/her right to block or cancel information.

Consent and its contents need to be logged and therefore it’s advisable to save all transactions related to the consent in the relevant dataset. This includes internet protocol (IP) address, date, time and Website when registered via an online form. And never forget that the subscriber has a right to cancel his/her consent at any time. When collecting the consent, you have to point this out immediately to users as it is otherwise not legally conforming. Add to each email a simple unsubscribe link that needs not more than two clicks to terminate receiving the newsletter, doesn’t involving cost or requires any login. The option to cancel via a reply e-mail or other channels (letter, telephone) is recommended in addition and the processing of a cancellation receipt shouldn’t take longer than 24 hours.

Please do not send cancellation confirmation via e-mail, as this could be perceived as harassment after the person unsubscribed. Further, personal data of the individuals who have unsubscribed are no longer required, so they have to be removed or blocked from the distribution list. Consent must be recorded.

By Daniela La Marca