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Electronic marketing and internet use

Electronic marketing Are there rules specifically governing unsolicited electronic marketing (spam)? Yes. Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 states that unsolicited communications for the purposes of direct marketing should not be sent unless the recipient has consented to such communications being sent by the sender.

Where consent has not been contained, electronic mail can be sent for the purposes of direct marketing where the following conditions are satisfied:

  • The sender has obtained the recipient's contact details in the course of the sale of a product or service to that recipient and the direct marketing is in respect of similar products and services only;
  • The recipient was given a free method, at the time his or her contact details were initially collected, to refuse the use of his or her contact details for the purposes of such direct marketing; and
  • The recipient is given the right to refuse to use his or her contact details for direct marketing in each subsequent communication.

‘Electronic mail’ in this context means any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient's terminal equipment until it is collected by the recipient, and includes messages sent using a short message service. This includes emails, texts, picture/video messages, voicemails, social media messages or any similar message that is stored electronically.

Cookies Are there rules governing the use of cookies? Yes. Regulation 6 of the Privacy and Electronic Communications (EC Directive) 2003 provides that cookies (or similar technologies) should not be used unless:

  • the user is provided with clear and comprehensive information about the purposes for which the cookie is stored and will be accessed; and
  • the user gives his or her consent.

This process need be done the first time cookies are set only. The Article 29 Working Party identified four characteristics of effective consent in the context of cookies:

  • Specific information should be given to data subjects;
  • Consent should be obtained before processing begins;
  • Consent must be unambiguous and result from a positive action; and
  • Consent must be freely given.

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