Do you have permission to send newsletters in place?
You probably recognize it: under the contact form on your website or at the end of the ordering process: a check mark with "subscribe to our newsletter. Handy, isn't it, such a box with "Stay informed about promotions and news"? And especially convenient if that box is already checked in advance.
Alas. So that checkbox should not be on by default. Why not? Because then you do not comply with the rules of the AVG (Privacy Act) and Telecommunications (Spam Act). And that can cost you dearly.
Back to basics: the AVG and consent
When you send newsletters, you process personal data: usually a name and e-mail address. This is not allowed just like that. According to the AVG, you need a 'basis' for that. That is a legally valid reason to process personal data.
The basis you use for sending newsletters is almost always 'consent', but that consent is only valid if it meets a few conditions:
- The consent must have been freely given.
- The consent must have been given unambiguously.
A pre-ticked box satisfies neither. Because: the customer is not actively doing anything themselves. With a pre-ticked box you move the customer (often unconsciously or inadvertently) towards giving consent. Only if the customer himself puts the check mark, is there valid consent.
The Telecommunications Act:
Not only the AVG requires consent before you can send a newsletter. The (lesser known) Telecommunications Act also contains rules about sending commercial e-mails (such as a newsletter). That law says it much more explicitly: you may not send unsolicited electronic communications for commercial purposes without the prior consent of the recipient. Even for the consent contained in telecommunications, a pre-ticked box is not sufficient.
Good to know is that the Telecommunications Act contains an exception for newsletters: if someone is a customer of yours, you are allowed, under certain conditions, to send e-mails about products or services that are similar to the products or services you have provided to that customer. But beware: the AVG still applies in those cases.
So what is allowed?
Very simple: leave the box blank. Let the customer decide if he or she wants to subscribe to your newsletter. And make sure the checkbox is only active when the customer clicks it. It's important to know that you have to be able to prove that permission was given (and that the checkbox was checked). In practice this means: keep a record of the moment someone checked the box, the corresponding text and the context in which that happened. Especially with online forms this is easy to arrange.
In short: if you send someone a newsletter, that person must have clearly and actively agreed to it beforehand. If you use a checkbox, the recipient must have actively checked the box himself and you must be able to prove later that the customer has given permission.
Even more rules:
There are lots of rules for e-commerce entrepreneurs. We can't cover them all in this short blog, but we would like to draw your attention to two important issues related to (the consent to) sending digital newsletters:
- At the consent box, you need to explain in understandable language what the consent is for. An example:
"I give permission to use my name and e-mail address to send newsletters with information about our offers and products."
Avoid vague texts such as "Stay informed" or "Sign up for updates." The customer needs to understand what you are doing with the data - and why.
- In digital newsletters, be clear about the identity and contact information of the sender. Let people know who you are and provide a clear unsubscribe option. It shouldn't take a lot of effort for the recipient to unsubscribe. What often happens is that a recipient first has to fill out a survey before being unsubscribed. That should not be allowed.
In summary: 4 things you can do right away
- Make sure the consent box is not checked in advance.
- Add a clear and concrete text to the checkbox.
- Keep proof of consent - with date, content and context.
- Make sure your newsletter contains information about the identity and contact details of your webshop as well as a simple unsubscribe link.
Questions about the legal side of your newsletter?
Do you want to be sure that your webshop works according to the AVG and the Telecommunications Act? We will gladly help you. You can also contact our legal partner: Tieman | Creative legal & more. Tieman specializes in the legal side of E-commerce and makes legal issues understandable, even if they involve small tick boxes.
This article was written by Arjon Tieman (Legal Marketer and lawyer)