In December 2014, a Berlin local court ruled against an unsolicited account-confirmation email. Many online reports presented this as a blow to double opt-in. It was not. The court decided a narrower question, and the procedure itself was left untouched.
What the Berlin court decided
The Amtsgericht Berlin Pankow/Weißensee ruled on 16 December 2014 (case 101 C 1005/14). It held that an unrequested confirmation email for a customer account is annoying advertising and therefore impermissible.
The court looked at the email from the recipient’s point of view. According to the judgment as quoted by a law firm, what matters is not only the content of the email but also the context in which the recipient received it.
The key point is that the court expressly left open whether and under what conditions a double opt-in request for a newsletter may be sent. Commentators at the time stressed that several online traders had misread the ruling as one about double opt-in.
What double opt-in is for
In double opt-in, a person enters an email address, then receives a link and must confirm it. The aim is to show that the address owner really agreed to receive mailings.
The Federal Court of Justice (BGH) addressed this in a judgment of 10 February 2011 (I ZR 164/09). It did not question the suitability of the procedure for proving consent to email advertising. Once the consumer has clicked the confirmation link, it is presumed in the advertiser’s favour that the consent was really given.
The same ruling set a limit. A confirmation email in double opt-in proves neither consent to advertising calls nor an easier burden of proof for the advertiser. The reason is that the confirmation email does not check whether the phone number entered is correct.
Where it stands under data protection law
According to the German online retail association bevh, Germany’s data protection authorities (DSK) said in November 2018 that double opt-in should still be used under the GDPR.
Practical takeaways for shop and newsletter operators
- Send a confirmation email only after someone has actually requested a newsletter or account.
- Keep records of the sign-up and the confirmation, so you can show consent later.
- Do not treat a confirmed email address as consent to phone advertising.
- Unsure about a specific set-up? Ask a lawyer who specialises in data protection or competition law.
This article is general information, not legal advice.