Newsletter mailing, and email marketing are part of the fixed online marketing universe. Basically, prohibition with opt-in permission also applies here for the processing of personal data. Processing is only allowed by law if either there is a consent by those impacted, or a statutory justification. This could be, for example, preserving the justified interests of the person responsible for sending email marketing. Recital 47 of the General Data Protection Regulation expressly states that the law also applies to the processing of personal data for direct marketing as a legitimate interest of the person responsible.
In addition, such an interest could be present, for example, if there is a relevant and proportionate relationship between the persons concerned and the person responsible. This could be the case if the person involved is a customer of the person responsible or is in the latter’s service. Therefore, much indicates that email marketing is allowed without consent, at least for existing customers. If the company has a justified interest in ‘cold’ acquisition through email marketing, the marketing emails can be allowed to potential customers without consent. To receive no further information by newsletter or email, the customer receiving them need only object to processing for marketing purposes.
One must note, however, that according to Art. 95 of the General Data Protection Regulation, this applies to all data protection-related purposes unless special rules with the same regulatory target are contained in the ePrivacy directive (see also recital 173). The consequence is that email marketing is currently only allowed with the consent of those impacted. (Art. 13, para. 1 of RL 2002/58/EC). One must wait to see whether the coming ePrivacy regulation provides more clarity about this issue.
Regardless of whether a company supports the marketing measures afterwards on its justified interest or on consent, the obligation arises for the person responsible to adhere to comprehensive information obligations. Their contents are differentiated using which justification reason is selected.
(32) Conditions for consent
(33) Consent to certain areas of scientific research
39) Principles of data processing (40) Lawfulness of data processing
(41) Legal basis or legislative measures
(42) Burden of proof and requirements for consent
(43) Freely given consent
(47) Overriding legitimate interest
(171) Repeal of Directive 95/46/EC and transitional provisions
(173) Relationship to Directive 2002/58/EC