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Advertising and marketing

Regulation

What rules govern digital advertising and marketing in your jurisdiction?

In a business-to-consumer (B2C) and business-to-business (B2B) context, Chapter IV (Commercial Communications) of the Luxembourg e-Commerce Act, as modified, imposes an obligation of transparency in relation to commercial communications and sets out restrictions on unsolicited commercial communications.

In a B2C and B2B context, Chapter II of the Luxembourg Advertising Act prohibits misleading advertising and restricts comparative advertising.

In a B2C context, Articles L.224-4 and 5 (advertising in relation to consumer credits) and Articles L.226-5 and 6 (advertising in relation to mortgages) of the Luxembourg Consumer Code, as modified, apply.

Are there any specific regulations governing the use of targeted advertising?

To the extent that such targeted advertising qualifies as an unsolicited commercial communication, whereby ‘commercial communication’ is defined broadly as "any form of communication designed to promote directly or indirectly the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exercising a regulated profession", the following rules set out in Article 48 of the Luxembourg e-Commerce Act, as modified, must be respected: 

  • General rule: opt-in (explicit, specific prior consent needed), with right to withdraw consent afterwards (to be included in each communication), free of charge (using at least the same communication means);
  • Exceptions:
    • existing clients: opt-out (no consent needed, with a right to request to no longer receive the emails); if
    • the electronic contact data was acquired in the context of the sale of a product or service;
    • information is sent about similar products or services offered by the seller; and
    • at the time the contact data was acquired, the customer was clearly and expressly offered the opportunity to object easily and free of charge; and
    • a similar opportunity to object (free of charge) is offered in each communication sent, and using at least the same communication means; and
  • No prior consent if message sent to a business, using an impersonal address (eg, info@xxx.com).

Furthermore, the sending of targeted advertising implies the processing of personal data, leading to the applicability of the EU General Data Protection Regulation (2016/679) (GDPR), which provides for additional rights for data subjects that form the subject of ‘direct marketing’, which includes targeted advertising.

Restrictions

Are there any restrictions or limitations on goods and services that can be advertised, marketed and sold online?

Yes. Pursuant to Article 50 of the Luxembourg e-Commerce Act the following types of contract may not be concluded electronically:

  • contracts that create/transfer real estate ownership (for now, this requires the passing of an authentic act with a wet-ink signature before the notary, although an imminent law proposal may change that in the near future);
  • contracts requiring by law the involvement of courts, public authorities or professionals exercising public authority;
  • contracts of suretyship granted and on collateral securities furnished by persons acting for purposes outside their trade, business or profession; and
  • contracts governed by family law or by the law of succession.

The following acts, among others, are also forbidden:

  • marketing and sale of all signs and symbols that might provoke a rebellion or any trouble to the public order (Article 274-1 of the Luxembourg Criminal Code, as modified);
  • advertisement of weapons; and
  • in the context of the protection of minors (under 16 years of age), advertisement of indecent objects or activities that are considered to be troubling to their imagination (eg, violence, sexual content, etc) (Article 385bis of the Luxembourg Criminal Code, as modified).

Lastly, the marketing and sale of the following goods, among others, is subject to limitations (prior authorisation) or can even be prohibited in relation to minors: alcohol, tobacco and medicinal products.

Spam messages

What rules and restrictions govern the sending of spam messages?

The following rules set out in Article 48 of the Luxembourg e-Commerce Act, as modified, must be respected: 

  • General rule: opt-in (explicit, specific prior consent needed), with right to withdraw consent afterwards (to be included in each communication), free of charge (using at least the same communication means).
  • Exceptions:
  • Existing clients: opt-out (no consent needed, with a right to request to no longer receive the emails); if
  • the electronic contact data was acquired in the context of the sale of a product or service;
  • information is sent about similar products or services offered by the seller; and
  • at the time the contact data was acquired, the customer was clearly and expressly offered the opportunity to object easily and free of charge; and
  • a similar opportunity to object (free of charge) is offered in each communication sent, and using at least the same communication means.
  • No prior consent if message sent to a business, using an impersonal address (eg, info@xxx.com).

Furthermore, the sending of spam messages implies the processing of personal data, leading to the applicability of the GDPR, which provides for additional rights for data subjects that receive direct marketing, whereby spam messages are likely to form such direct marketing. ‘Direct marketing’ is defined by the Council of Europe as:

all activities which make it possible to offer goods or services or to transmit any other messages to a segment of the population by post, telephone or other direct means aimed at informing or soliciting a response from the data subject as well as any service ancillary thereto.

This may cover spam messages. 

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