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Electronic marketing and internet use
Are there rules specifically governing unsolicited electronic marketing (spam)?
Yes. Electronic marketing is regulated by the Electronic Communications Act. As a general rule, the data subject must be able to consent to electronic marketing. The requirements for this consent depend on whether the recipient is a natural or a legal person and whether a client relationship exists between the parties. Real-time non-automated phone calls and regular mail are not considered electronic marketing.
In addition, customer consent must be obtained separately from other terms of a contract (ie, it cannot be obtained in the standard terms presented to the customer). A checkbox separate from the acceptance of the standard terms is often used to obtain this consent in practice.
Opt-in is required if the recipient is a natural person, except in the case of an existing client relationship, where opt-out is permitted. The message itself must always include:
- information clearly identifying the party on whose behalf the marketing is sent;
- clearly distinguishable direct marketing information; and
- clear instructions on how to unsubscribe from further direct marketing (eg, an unsubscribe link).
Reliance on an opt-out (for natural persons) in the framework of existing client relationships is subject to the following additional requirements:
- The entity sending the communications must have obtained the contact details in the course of a sale;
- The direct marketing must be in respect of similar goods or services;
- The recipient must have been given the chance to opt-out of the collection of his or her personal data;
- The message must include information clearly identifying the party on whose behalf the marketing is sent; and
- The message must include clearly distinguishable direct marketing information and provide the recipient with a simple means to opt out or unsubscribe in each subsequent email.
If the recipient is a legal person, an opt-out system applies. There is no need to obtain prior consent for direct marketing. However:
- the message must include information clearly determining the person on whose behalf the marketing is sent;
- the message must include clearly distinguishable direct marketing information; and
- the recipient must be given a simple means to opt out or unsubscribe in each subsequent email.
Due to the opt-out system, consent to cookies is not required. The law does not refer specifically to browser settings or other applications that need to be adopted in order to exercise the right to refuse. A law is being drafted under which an opt-in system for cookies would apply to providers of information society services. The draft law was initially meant to enter into force on June 1 2015, but no information regarding the possible enforcement date is available at present.
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