- The law
- Act against Unfair Competition (UWG) section 7(2) no. 2 and 7(3); GDPR
- Who enforces it
- No single regulator: competitors and associations enforce the UWG through the courts, and the federal states' data protection authorities enforce the GDPR
- Penalties
- No fixed fine under the UWG: competitors, trade and consumer associations can demand that you stop, by warning letter (Abmahnung) and court injunction, with costs. Data protection authorities can also act under the GDPR
What’s changed (2026/27 edition). Germany is new to Mailfois's email rules in the 2026/27 edition.
What it means for your email
- Section 7(2) no. 2 of the UWG says advertising by email without the recipient's prior express consent is always an unreasonable nuisance.
- It applies to every recipient, businesses included: unlike the UK and Ireland, there is no general exception for business addresses.
- The existing-customer exception in section 7(3) is the only way to email without consent, and only if all four conditions are met.
- The German data protection authorities say double opt-in is required for consent given online, and that you must be able to prove each person's consent in full, including its wording.
- Storing an IP address and saying consent came from it is not enough proof.
Do
- Use double opt-in: after sign-up, send a confirmation email and only add the person once they click to confirm.
- Log each consent: the wording shown, the date and time, and the confirmation, so you can produce it if challenged.
- Use the existing-customer exception only for addresses you got from the customer in connection with a sale, for your own similar products, where they haven't objected.
- Tell customers clearly, when you collect their address and in every email, that they can object at any time at no cost beyond basic transmission costs.
Don't
- Don't email business contacts just because they are businesses: they need to have consented too.
- Don't add offers to the double opt-in confirmation email. Keep it to the confirmation request: anything promotional in it risks being treated as advertising sent without consent.
- Don't email people who browsed, entered a prize draw or abandoned a basket without consent.
- Don't rely on bought or rented lists.
Good to know
- Competitors, qualified trade and consumer associations and chambers can bring claims under section 8 of the UWG, so a single complaint can turn into a warning letter with costs.
- The authorities say an existing customer's address can generally be used for email advertising if the section 7(3) conditions are met and the purpose was explained when the address was collected.
- There's no fixed time limit on the exception, but the authorities say the longer it has been since the last purchase or contact, the harder it is to justify emailing.
Sources
- Act against Unfair Competition (UWG), section 7 (Federal Ministry of Justice, gesetze-im-internet.de)
- Act against Unfair Competition (UWG), section 8 (Federal Ministry of Justice, gesetze-im-internet.de)
- Guidance of the supervisory authorities on direct marketing under the GDPR, February 2022 (Datenschutzkonferenz), sections 1.4.1 and 3.3, citing the Federal Court of Justice judgment of 10 February 2011, I ZR 164/09
Researched by Mailfois · 2026/27 edition · checked 20 October 2026
Not legal advice. This is a plain-English summary. Check the sources for anything specific, or take professional advice. Spotted something out of date? Email [email protected] and we'll credit you if you'd like.