Direct marketing
Direct marketing is the targeted, personalised promotional contacting of individuals (by post, email, phone or digital channels) that is permitted under data protection and unfair competition law only under specific conditions and subject to an unconditional right to object.
Direct marketing refers to the targeted promotional contacting of individual, identified or identifiable persons, for example by post, email, telephone, SMS or digital channels. Under data protection law it constitutes processing of personal data and therefore requires a legal basis under Art. 6 GDPR. The most relevant grounds are consent (Art. 6(1)(a) GDPR) and legitimate interests (Art. 6(1)(f) GDPR). Recital 47 GDPR expressly clarifies that the processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest – but only after a careful, case-by-case balancing of interests.
In addition to the GDPR, unfair competition law regularly applies in Germany: Section 7 of the Act Against Unfair Competition (UWG) prohibits unreasonable nuisance and, as a rule, requires prior express consent (opt-in) for email, SMS and telephone advertising directed at consumers. A narrow exception applies under Section 7(3) UWG (existing-customer marketing): email advertising to existing customers for the trader's own similar goods or services is permissible without separate consent if the address was obtained in connection with a sale, the customer has not objected, and every message clearly and conspicuously points out the free right to object. Telephone advertising to consumers, by contrast, always requires consent.
The defining right of the data subject is the right to object under Art. 21(2) and (3) GDPR: a person may object to direct marketing at any time, without giving reasons and free of charge; thereafter the data may no longer be processed for marketing purposes. Under Art. 21(4) GDPR this right must be brought to the data subject's attention explicitly and separately from any other information, at the latest at the time of the first communication. In practice this means a working unsubscribe link in every marketing email and the maintenance of suppression or do-not-contact lists so that objections are honoured permanently.
Legal Basis
Art. 6(1)(a) and (f), Art. 21(2)-(4), Recital 47 GDPR; Section 7 UWG (German Act Against Unfair Competition)
Practical Example
An online retailer wants to inform its existing customers about new products via a newsletter. The data protection officer reviews the legal basis: for the majority of addresses gathered through a double opt-in newsletter form, documented consent is on file. For customers whose address was collected at the point of purchase, the mailing relies on Section 7(3) UWG, provided the newsletter promotes only the retailer's own similar products and the right to object was clearly stated both at collection and in every message. Every email contains a one-click unsubscribe link; unsubscribes are automatically added to a central suppression list, so objecting customers are reliably excluded from future campaigns and the process remains demonstrable.