Businesses have relied on marketing campaigns (including special offers and games) for decades to popularize their services and products. In these efforts, the end consumer has always been the target and the source of success. With the dramatic increase of digital technologies, it has become an expected trend for organizations to use their websites, social media, and other online sources to achieve higher sales. Bulgaria is no exception to this trend. Due to the influence of the dynamic environment and the golden rule to "Be the First", there is a tendency among companies in Bulgaria to speed up such campaigns and neglect what should be a core part of them, namely their legal structure. This in turn can create a risk of potentially serious unintended breaches. There are many good reasons why Bulgarian companies should consider the legal side before launching new online marketing campaigns.

Why?

An online marketing campaign often includes the assistance of an advertising agency, the use of personal data (e.g. names, email addresses, addresses of consumers), prizes, the use of photos subject to copyrights, and the use of the company's trademarks and those of its campaign partners, to name just a few aspects. The aforementioned matters are regulated by various laws, for example:

  1. Contracts and Obligations Act1 / Commerce Act2 – regulating the relations between the company and its consumers, and/or by the company and its partners;
  2. Personal Data Protection Act3 - regulating the use of the consumers' personal data;
  3. Consumer Protection Act4 - regulating the rights of the consumers;
  4. Competition Protection Act5 (unfair competition) – regulating the conditions for conferring the prizes and advertizing;
  5. Electronic Commerce Act6 – regulating (amongst other matters) the use of cookies;
  6. Copyright and Neighboring Rights Act7 – regulating the copyrights for photos, software etc.;
  7. Marks and Geographical Indications Act8 – regulating the use of the trademarks.

Various other laws might also be involved, depending on the specific marketing campaign. Non-compliance with the legal requirements might lead to complaints and could potentially incur costs for the companies, among which are eventual penalties, legal costs (for example, in case of disputes or out-of-court settlements) or other negative outcomes.

How?

By introducing General Terms and Conditions and Privacy Policy

Typically, marketing campaigns have General Terms and Conditions, which define the rights and obligations of each party, namely the company and its consumers. Since the use of a personal data represents a significant part of the marketing campaign, information concerning the use of personal data is sometimes not included in the General Terms and Conditions but is instead stipulated in details in another document, usually called Privacy Policy. Those documents are the main sources of information for consumers with regard to the respective campaign and they should therefore be considered already in the course of developing the campaign.

By obtaining the consent of the consumers for the use of their personal data

As per the Bulgarian Data Protection Act, personal data may be used if certain conditions are met. In practice, the company should obtain the prior consent of the consumers in order to use their personal data for the purposes of a certain marketing campaign. That consent should be freely given, and specific. The consumers should be informed why, how, when, and by whom their personal data will be used. The General Terms and the Privacy Policy are the preferred tool used by the companies to provide answers to those questions. Certain additional legal requirements should be considered by the companies if they intend to use the personal data outside of the scope of the marketing campaign (for example, for direct marketing purposes), which is the usual scenario.

When?

In order to ensure timely execution of the campaign, it is incumbent that the legal review of the basic structure of the campaign be made at an early stage and that, in concert with other parties, the legal team is able to shape the details of the campaign to ensure it complies with all relevant laws and regulations. This avoids the extra time of re-working the campaign to comply with all legal requirements after management and creative teams have fully designed it -- something that seems to be the case all too often.