Lots of folks have been talking recently about a September [acp author=”Federal Court” title=”Judgment of the First Civil Senate of 12.09.2013 – I ZR 208/12″ year=”2013″ month=”September” day=”12″ id=”GFC-01″ url=”http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&Datum=2013-9&Seite=5&nr=65732&pos=170&anz=263″]German Federal Court ruling[/acp][acp footnote]I found an HTML version that I could run through Google Translate here.[/acp] that “emails sent using a ‘send to a friend’ function are to be considered spam, unless the recipient had given prior express consent.”
This is a fairly significant development in law. As a general rule, people advise that using a “Forward to a friend” function is okay as long as certain requirements are met. For example, back in 2012, I stated on the [acp author=”Mickey Chandler” media=”blog” publisher=”ExactTarget, a salesforce.com company” year=”2012″ month=”May” day=”18″ url=”http://www.exacttarget.com/blog/a-tiny-picture-worth-a-few-grand/” id=”Chandler-01″]ExactTarget blog[/acp] that: “our advice is to let people control the content of the messages that they are sending and to never offer them anything at all in exchange for sending messages to their friends.” This guidance remains generally true, especially within the context of that post (which was generally discussing the CAN-SPAM Act).
However, this no longer appears to be the case in Germany. As Johannes Baumann told [acp author=”Dataguidance.com” title=”Germany: ‘Send to a friend’ email function ruled as spam” id=”DataGuidance-01″ media=”blog” year=”2013″ month=”November” day=”14″ url=”http://dataguidance.com/news.asp?id=2143″ publisher=”Cecile Park Publishing Ltd.”]{author}[/acp] article: “Tell-a-friend website functionalities have been a sort of legal ‘grey area’ since a couple of years in Germany. However, so far it could be argued that by designing the emails in a certain way, the legal risk could be reduced considerably. After the German Supreme Court ruling, this is no longer possible and companies using such functionalities should remove them from their websites as soon as possible.”
So, what does this mean from a practical standpoint? Ultimately, marketers are bound to follow prevailing law. In fact, that is generally written into the contracts that you will have with your email or Internet service provider. If you want to operate under the safest possible conditions, you should make certain that you’re following the most stringent legal standard possible. For “Forward to a Friend” email, this is undoubtedly going to be German law. I’m not certain how this would apply for a company that doesn’t do any business in Germany (and thus wouldn’t ordinarily be subject to German law) if their form was abused by an unknown third party in order to send mail to German recipients.
[acp add author=”United States Federal Trade Commission” title=”RIN 3084-AA96: Definitions and Implementation Under the CAN-SPAM Act” year=”2005″ month=”May” url=”http://www.ftc.gov/os/2008/05/R411008frn.pdf” /]
About the Author
Mickey Chandler is a Consultant & Attorney with over 28 years of experience in Email Deliverability & Privacy Law. He has a strong background in email authentication infrastructure (SPF, DKIM, DMARC), ISP and mailbox provider relations, anti-spam policy and compliance, CAN-SPAM and state anti-spam law gained through overseeing the Abuse & Compliance team at Salesforce Marketing Cloud, originating the ISP relations role at Informz (now part of Higher Logic), and working in the fight against spam since 1997. He holds a B.A. in Government, a B.S. in Computer Information Systems, and a J.D. from the University of Houston Law Center. He is a certified CIPP/US professional and a certified CIPM professional.
