In the case of very large e-mail distribution lists, it makes sense to use e-mail tools or ESP (e-mail service provider) which take over the mass mailing. With mass mailing, an e-mail is sent to a large number of recipients. These tools not only make some processes much easier, but also make various functions possible, such as analysis or optimization of the dispatch.
Most e-mail tools are based on an address database, an editor for creating HTML or text mailings, a dispatch mask for selecting a recipient group and a report view in which openings and clicks are recorded.
Meanwhile, more and more purchase data is being used for personalization in e-mail marketing through corresponding tools. Marketers can also make use of numerous segmentation options. In addition, email marketing tools can even perform tasks such as A/B testing. E-mail tools are becoming increasingly complex and can be used extensively.
When choosing the right email tool for your company, it is important to clarify in advance which functions are absolutely necessary, whether the tool is suitable for your company’s capabilities and what the costs are. The following questions can help you make a decision and serve as a guide in your search for the right software.
General questions: Does the country of origin of the software play a role, for example with regard to data protection? How important is the backend language? Who should work with the e-mail tool and do you need different permissions? What is the available budget? Is telephone or online support required?
Questions regarding functionality: Should the handling of the opt-in process be carried out independently or by the system? What functions should the database fulfill? How should the database be segmented? Should regular individual newsletters be sent out? Should certain content be based on triggers and automated accordingly? Are the requirements for this fulfilled? Is HTML expertise required? How should the mobile version be designed?
Questions about integration: With which systems should the tool communicate? Is an API interface required? Is there ready-to-use information that can be used?
When choosing an e-mail tool, there are a few things you should bear in mind with regard to data protection in order to remain within a legally secure framework. When choosing an e-mail marketing tool, the lawyer and data protection expert Dr. Nils Haag points out from a data protection perspective that German tools are not automatically allowed. If an external service provider is to be hired who is given access to a lot of sensitive data in the context of e-mail marketing, a data protection agreement must be concluded in advance which corresponds to a concrete legal framework. This concerns the so-called commissioned data processing. It is irrelevant whether the service provider is based in Germany, Europe or the United States. Here, “EU standard contracts” can be used.
If a contract is to be concluded with a company from the USA that has signed up to the Privacy Shield, a major step has been taken from a data protection perspective. The Privacy Shield is a formal agreement between the EU and the USA on data protection law. In this case, a contract data processing agreement should be concluded under German law to avoid any problems with third countries.
The Privacy Agreement is a contract that must be signed by both parties in principle. Since May 2018, however, the mandatory requirement of writing has no longer been given under the Basic Data Protection Regulation, which makes life much easier in digital business.
Some providers such as MailChimp also have a contract data processing agreement that can be downloaded. This agreement must be printed, signed and sent to MailChimp by post. This agreement should be checked in advance for legal compliance, as the law already specifies what such an agreement must contain. From a practical point of view, some key points should be examined more closely. These are on the one hand the data security measures and on the other hand possibly existing certificates for IT security. Data security is one of the most relevant points. Therefore, the necessary protection should be carefully examined before any agreements are concluded.
If a provider is selected that is based, for example, in the United States, users should be informed that the data is stored in the USA. Although there is no legal obligation to do so, the supervisory authorities would like to be informed accordingly.
Apart from the Privacy Shield already mentioned above, there are currently no other transnational agreements. However, the European Commission has given countries such as Switzerland and to some extent Argentina and Canada a comparable status. From a European perspective, these countries guarantee an adequate level of data protection, so that they can be considered as EU countries. For other countries, EU standard contractual clauses may be applied, which should guarantee European data protection standards.
The company Finc3 has compiled which e-mail tool is best suited for which scenario. The list can be viewed at http://bit.ly/OMRTooltest. Corresponding video tutorials for the respective tools can be found under the following links:
Data protection plays an existential role in e-mail marketing and should therefore never be disregarded. In the following section, Dr. Haag provides valuable tips and advice and explains what is possible within the framework of data protection and what must be taken into account.
1. companies often tend to buy email addresses with opt-in, as the appearance of legitimacy is conveyed to the outside world However, this is in no case permissible, since an opt-in must explicitly name the person entitled to it without exception. The sale of such data records is therefore not permitted in Germany.
2) When using e-mail tools, sufficient data protection agreements with the service providers, valid opt-ins and legally sound campaigns should be available.
3 The line between e-mails that can be sent without opt-in and those that require an opt-in to be sent is very thin. E-mails may only be sent without prior opt-in if there is no reference to a product, event or similar services in the e-mail.
4 The prevailing opinion is that sending e-mails for customer satisfaction surveys directly after a purchase is not permissible without an opt-in.
Double Opt-in (DOI), as explained in a previous blog, is a double opt-in to subscribe to a mailing list. The traceability of the DOI must be ensured. The legal basis for the requirements in e-mail marketing is the German Unfair Competition Act (UWG). Although the DOI is nowhere really regulated, the German courts demand double approval in e-mail marketing. Otherwise, consent cannot be sufficiently proven. However, this poses a particular problem for many e-mail marketers, as at least 15 percent of the distribution list growth is lost in the DOI process. Only about 65 to 85 percent of the e-mails sent for the purpose of the DOI (e-mail with confirmation link) are actually answered. Some companies therefore try to make e-mails that serve to promote sales a part of the product a customer buys. However, this represents a certain grey area and it is questionable whether courts would actually follow this view in individual cases or whether they would still evaluate the e-mails as advertising. It would be different if the company were to communicate completely openly from the outset that pre-determined content is sent by e-mail and that this content is part of the product purchased. This means that all benefits and services must be communicated transparently throughout.
If e-mail recipients have not responded to a confirmation e-mail for a DOI, it has not yet been clarified whether the recipient may be reminded of the unfinished procedure by another e-mail. According to Dr. Haag, the risk here is quite manageable. However, the e-mail should only refer to the pending confirmation and may not advertise products or similar.
The most important thing is that in case of dispute it can be proven that a DOI exists. In other words, that the user has activated the confirmation link at a certain date and time. It is also useful if the user’s IP address is also logged.
Also with existing customers some data protection legal things are to be considered. To be allowed to send advertising e-mails to existing customers, four different requirements must be met. First, the customer must already have purchased a product or service. The prevailing opinion is that the purchase should have been made against payment. Another requirement is that advertising may only be sent if it contains similar goods or services. In this context, it is important to note in any case that the advertising is useful for the recipient. The third requirement for permissible advertising is the reference to the possibility of revoking the newsletter at any time. It must be possible to unsubscribe from any newsletter, regardless of whether or not a DOI exists. The reference to the revocation must be given before the customer registers.
The last requirement is that the customer may not receive any further e-mails once a revocation has been made. This is a particularly high risk potential if the revocation is disregarded.