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UCE Fallout - Newsletter/Mailing List Confirmations are SPAM?
battlemage asks: "According to
this
Article [heise.de; Google translation - pretty unreadable], a german court decided on 9/19/02 that the common confirmation E-Mails sent to new subscribers of newsletters could be considered unsolicited e-mail, aka SPAM, if they are sent to somebody who did not actually subscribe. According to German laws, this could actually mean fines for the site running the newsletter. They said it was the site owners obligation to prove that somebody actually requested such e-mail. The question is, how would that be possible without e-mail and without cost-intensive Passport/ID/CreditCard-Checks? I do work on a website in my free-time, and we would probably like to offer newsletters in the future, but I'm now unsure how we could do that." Mailing list and newsletter admins in other countries might do well to keep an eye on this in case such laws migrate to their area.
After companies offering e-cards, now senders of online newsletter could face extinction. In the opinion of the Berlin regional court, the unsolicited sending of a newsletter subscription by e-mail is an illegal advertisement.
The applicant for the decision from September 19th, 2002, had received an e-mail, in which he was asked to click an activation link in order to be added to a newsletter mailing list. If he did not wish to be added, he should just delete the mail. The applicant considered this UCE and requested a cease & desist against the operator of the information service.
The court confirmed in its decision again the current public opinion that the unsolicited sending of an e-mail with commercial contents constitutes an illegal interference with the business of companies receiving them. Private persons also have a right to be spared from such mails as stated in 1004, 823 sect. 1 of German Civil Law.
The newsletter operator's objection that the applicant had signed in for the mailing list himself was not accepted by the court. In its opinion, the operator must prove that the applicant signed in personally. This couldn't be proved by the provider. The decision is seen controversially among jurists. The opt-in method for newsletters the decision is based on is used widely throughout the internet and was considered legally unobjectionable up to now.
The newsletter operator used the standard procedure: Subscribe on the website, get a confirmation mail, reply to the mail. In the court's opinion, the problem is: Someone signs up for you, you get a confirmation mail you didn't ask for, so this is spam, so this is illegal. The only way to circumvent this would probably be digital signatures used during subscription.
By the way: Yes, this decision is also considered crazy among German geeks.
But aside from that, this company actually did not send this e-mail solicited.
In otherwords, it wasn't a confirmation letter, it was an invitation. As well, if the e-mail had stated specifically that it was a confirmation and that the user had to have given them reason to send the e-mail, this case wouldn't have gotten as far as the court steps.
Of all the Universal Constants, here's one I know: Nice guys finish last
Here's a definition of email spam. A confirmation isn't bulk, so it's not spam. Did anybody make that point to the judge? That spam is not just any old unwanted email?
-russ
Don't piss off The Angry Economist