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Electronic marketing and internet use
Electronic marketing 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.
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