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Death of Direct Mail in Germany "Greatly Exaggerated"

Date: December, 2009 --

The newsletter of more than one observer of the direct marketing scene in Germany has carried the obituary of direct mail in Germany since a new law became effective on September 1. On its surface the law alleged to abolish something called the 'list exception' and required that an individual's data could not be used to send him a direct mail offer without his prior affirmative consent.

Some of the same observers have even advocated that mailers, data processors and list brokers immediately flee to the friendly legal climes of Netherlands and even Belgium. But as Mark Twain said shortly after a Hartford, Connecticut newspaper incorrectly published notice of his death, the reports of the death of direct mail and list availability 'are greatly exaggerated.'

To get this all straight, we ask the reader to start by keeping two questions constantly in mind. First, when did the customer or prospect's data enter my database? Second, how much am I comfortable saying about myself in my promotion and how much will my data provider let me say?

As to the first question, when did I get the information, if you acquired the customer or the file before September 1, 2009, you can continue to use it for marketing purposes by direct mail without some affirmative expression of consent right through to September 1, 2012. In fact, you can rent that file to another marketer, provided it only contains the data that was considered legal to be kept under the 'list exception'. That was name, title, address, academic degree, year of birth, membership in a 'group', occupation or business nature.

For clients and prospects whose data is acquired after September 1, you can market to someone without obtaining some sort of affirmative consent in the following instances:

  1. They are clients or customers for your products or you have some sort of contractual relationship with them. Perhaps they sign up for your digital newsletter.
  2. You obtain their name and address or other details from a public register such as a phone book or other registry open to the public. However, don't go gathering information from the Internet and think it's 'public'. That's not what is meant here.
  3. This is a B2B relationship and the address used is the business address and your offer relates to something used in the business.
  4. You are fund-raising for charity or vote-seeking for public office.
  5. (AND HERE IS WHERE MY SECOND QUESTION BECOMES RELEVANT) You are able to identify in the promotion piece the identity of the provider of this person's name to you. That is to say, you will be permitted by your list source to put clearly on the mail piece that 'We obtained your name and address from BigRetailer.com' or similar. Obviously, you won't do that without permission. And, yes, obviously you won't be renting your list to someone you don't want telling the world about your relationship.
  6. Finally, you can use data in referral and so-called 'piggy-back' marketing if you disclose the data source. For example, you might have the list owner 'endorse' you in a mailing which he 'makes'. That is to say that you do the mailing and attribute it as coming from him. Obviously, he has to agree to this. Or, which is a variant of e. above, you send the mailing from yourself AND you disclose that the data source 'referred' the person to you. Again, don't do it without permission from the list owner, or you'll find yourself being pretty roughly treated in the German list market.

    Remember that all of this still only applies to that data which was within the 'list exception', which is listed at the head of this article in bold type. Anything additional may result in a different conclusion and a need for affirmative consent.

    Finally, careful records should be kept for two years after a rental or sharing transaction and it should be auditable. Either you or your data processor will have to probably add fields to your customer database to hold date and source or destination of data subject to a transfer. Data Services can help you make sure you are in compliance.

    So don't move your Germany files or your company business to Netherlands or Belgium unless you have another good reason. The report of the death of direct mail in Germany has been greatly exaggerated.