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Electronic marketing and internet use
Are there rules specifically governing unsolicited electronic marketing (spam)?
When natural persons are concerned, unsolicited electronic commercial communication is limited to cases where prior explicit consent has been provided by the data subject. In the case of legal persons, such communications may be sent without prior consent, but the legal person may express its opposition, in which case no further communications can be sent.
There is an exception to the above rule, as a controller that has made electronic contact with its customers in the context of the sale of products or services may use customer contact details to send commercial communications regarding the products marketed by the controller or similar ones. Nevertheless, the controller must provide customers with a chance to object to such unsolicited communications, free of charge and in an easy manner. This must be done both when the contact data is collected and each commercial message is sent.
A valid point of contact for objecting to future communications must be provided in all commercial communications. Further, an up-to-date list of subjects that have consented (or not objected) to such communications must be kept at all times.
Portugal has adopted legislation implementing Article 5.3 of the EU Privacy and Electronic Communications Directive (2002/58/EC), as amended by the EU E-Privacy Directive (2009/136/EC). The implementing legislation came into effect on August 30 2012.
There is no explicit provision on the nature of such consent and the CNPD has issued no formal guidelines on its understanding. However, the system implemented in Portugal tends to be seen as an opt-in solution.
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