Sending offers by email without the recipient's consent is one of the most common violations committed by companies operating across borders. Although many entrepreneurs treat such a message as a simple sales activity, Polish and German regulations qualify it as unsolicited commercial information - and the consequences can be severe. In this article, we compare the regulations of the two countries, explain what a German Abmahnung is and suggest how to legally conduct email marketing on the Polish and German markets.
Email advertising without consent - a risk for cross-border companies
Sending a single e-mail with an offer to a potential customer is still sometimes regarded as a mere sales activity from a business perspective. From a legal point of view, however, the matter looks much more serious. In both Poland and Germany, the rule is that advertising sent by e-mail requires the prior consent of the recipient. This applies not only to consumers, but in principle also to businesses. Particularly in relations with the German market, a breach of this rule can quickly translate into concrete costs.
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The ePrivacy Directive and the opt-in principle in Polish and German law
At the level of the European Union, Directive 2002/58/EC (the so-called ePrivacy Directive), which introduces the principle of prior consent (opt-in) for the sending of commercial communication by electronic means, is of fundamental importance. In principle, the sending of such commercial communications also requires the processing of personal data in accordance with the RODO regulations, which means that the RODO and email advertising are closely related issues.
The Polish and German legislators therefore make the same assumption: before an entrepreneur sends an advertising message by electronic means, he must have the prior consent of the addressee. In Poland, this follows today from the provisions on the provision of electronic services and the Electronic Communications Law. In Germany, the basic provision is § 7 of the Gesetz gegen den unlauteren Wettbewerb (German Unfair Competition Act, abbreviated UWG), which treats e-mail advertising without prior express consent as an impermissible nuisance.
In practice, this means one simple rule: the mere fact that an e-mail address is publicly visible on a website, in the e-mail footer or in the business register does not yet give the right to send an offer. In Germany, this is emphasised particularly strongly, and the chambers of commerce and the courts have been pointing out for years that even a single e-mail can be considered a violation of the.
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Unsolicited commercial information in Poland - sanctions and authorities
In the Polish legal order, the prohibition of email spam is primarily based on two pillars:
- Act on Provision of Electronic Services - prohibits the sending of unsolicited commercial communications.
- Electronic Communications Law - regulates direct marketing by means of electronic communication.
Added to this are the requirements of the RODO if the email is personal data or the marketing campaign involves the processing of recipient data.
From a practical perspective, the most important thing is that consent to newsletters and other forms of e-mail advertising must be freely given, specific, informed and actively given. A presumption of consent, a lack of objection or the concealment of a marketing clause in the terms and conditions is not sufficient. This is why newsletter sign-up forms should be constructed carefully and separately for marketing purposes.
In Poland, the legal risk is real, but the way it is enforced usually looks different than in Germany. It is more common to speak of a complaint to the President of UODO, possibly a civil dispute or proceedings before the competent regulatory authority. As a rule, the penalty for unsolicited advertising in Poland is more severe in the case of persistent infringement - including in antitrust proceedings before the UOKiK.
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Abmahnung in Germany - consequences of unsolicited e-mail advertising
In Germany, the prohibition is included explicitly in § 7 UWG. The law stipulates that advertising by email without the prior express consent of the addressee generally constitutes an impermissible nuisance. In practice, this means a very high liability threshold. It makes little difference whether the message went to a consumer or a company, or whether it was a classic sales offer or rather an „enquiry about the possibility of cooperation”. If the purpose of the message is promotional, the risk is high.
Exception: marketing to an existing customer
In both countries, some room for legal marketing without separate new consent exists in the relationship with the existing customer. In Germany, the exception is explicitly enshrined in § 7(3) UWG. It can only be used if all of the following conditions are met together:
- the trader obtained an e-mail address when selling a good or service,
- only advertises its own similar products or services,
- the client did not object,
- with each message, the customer is clearly informed of his or her right to cancel.
The absence of even one of these conditions means that the exception does not work.
What is Abmahnung and why is it so effective?
In Germany, violations of the ban on e-mail advertising very often lead to so-called 'email advertising'. Abmahnung, i.e. a formal demand for an injunction. Such a letter usually contains a description of the allegation, a request to sign a declaration of non-infringement for the future and a request for payment of the attorney's fees for the preparation of the summons itself. In practice, this is a quick tool, cheap for the right holder and effective. As a rule, business associations as social organisations are also entitled to apply for an Abmahnung. This fact makes this legal tool an intimidating method of pre-litigation enforcement.
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Poland vs Germany - comparison of regulations
| Poland | Germany | |
|---|---|---|
| Main legal basis | Act on Provision of Electronic Services; Electronic Communications Law | § Section 7 UWG (Unfair Competition Act) |
| Requirement for consent | Yes - prior, explicit consent (opt-in) | Yes - prior, explicit consent (opt-in) |
| Personal scope | Consumers and traders | Consumers and traders |
| Exception for existing customers | Yes, under conditions similar to Article 13(2) of the ePrivacy Directive | Yes - § 7(3) UWG (four cumulative conditions) |
| Main bodies / enforcement routes | UODO, UOKiK, civil action | Abmahnung (private appeal), civil action, chambers of commerce |
| Typical consequences | An administrative penalty, particularly in the case of a persistent violation of the | Abmahnung costs + declaration of abandonment; in case of dispute - court costs |
| Practical response threshold | Rather with mass or persistent spamming | Even a single unsolicited e-mail |
Summary - how to legally conduct email marketing
As a trader operating in European markets, you need to take into account the differences and risks arising from the different systems of unfair competition law. Commercial fairness is a strong element of the legal culture of many European countries, and email spam - even in the form of a single offer - can expose a company to serious financial and reputational consequences.
Beata Kielar-Tammert's International Law Office will help you conduct your business while respecting the subtle differences between different legal orders.
Main conclusions
- In both Poland and Germany, sending an advertisement by e-mail requires prior explicit consent recipients - this also applies to business-to-business (B2B) communications.
- The mere fact that the email address is publicly available (website, business register), does not entitle you to send an offer.
- In Germany, even single unsolicited e-mail may result in a formal notice to desist (Abmahnung) and an obligation to pay legal costs.
- In Poland, sanctions are mainly enforced by the UODO and the UOKiK, and the penalty for unsolicited advertising is mainly threatened in the case of persistent violations.
- An exception to the consent requirement (marketing to an existing customer) exists in both countries, but is subject to the strict conditions, which, if not met, eliminates the possibility of invoking it.
