DirectMarketing

29 August 2003

Johan Vandendriessche

By implementing Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), Belgium has completely revised its existing legal framework on direct marketing by means of electronic mail.

1. Opt-in or opt-out, or both combined?

1.1. The principle: opt-in

Pursuant to article 11 of the Law of 11 March 2003 on certain legal aspects of information society services [1], the use of electronic mail for direct marketing purposes is subject to the prior, free, specific and informed consent of the recipient (opt-in regime). The burden of proof hereof lies with the provider.

Electronic mail is legally defined as "any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient [2]". This definition does not only include e-mail as such, but also SMS, MMS messages and voice mail messages.

1.2. The right to withdraw the consent

Even after the recipient has given his consent, he may still at all times decide that he no longer wishes to receive direct marketing by electronic mail (i.e. "the right to object"). To that end, the provider must provide the recipient, each time an electronic mail is sent, with clear and understandable information about the right to object and must point to suitable technical means to effectively exercise this right. The provider may for instance add a signature to the e-mail with information about the possibilities to withdraw the prior consent (e.g. a reply message procedure or a hyperlink).

1.3. The exceptions to the opt-in regime: opt-out regime

As the opt-in regime would be too strict, a Royal Decree regarding the use of electronic mail for direct marketing purposes was issued on 28 May 2003, implementing the opt-out exceptions to article 13 of the Directive on privacy and electronic communications.

Under this Royal Decree, two exceptions to the general opt-in regime exist.

The first exception relates to sales contracts. The provider is exempted from the obligation to obtain prior consent if (i) he obtains directly from his customers, natural or legal persons, their electronic contact details for electronic mail, in the context of the sale of a product or a service, provided the legal and regulatory data protection conditions have been respected, (ii) he uses the electronic contact details solely to market products or services, similar to those that he sold before and (iii) he offers the customer, at the moment the electronic contact details are collected, the right to object, free of charge and in a convenient manner, to the use of his personal data for the purposes of direct marketing.

This exception also applies to existing customers. However, in that case the original collection of personal data must have been compliant with the data protection legislation.

The second exception relates to electronic mail sent to legal persons, provided the electronic contact details are not tied to a natural person, in which case the opt-out regime will apply. Thus, the opt-out regime will apply to electronic mail sent to info@twobirds.com but not to electronic mail sent to name@twobirds.com.

Under both exceptions, the provider still must inform the recipient of the existence of his right to object and provide the necessary technical means to exercise this right to object.

After giving the required consent (i.e. opt-in), every natural and legal person may still, at any time, free of charge and without motivation, inform the provider about the fact that he no longer wishes to receive direct marketing information by electronic mail. The provider must then (i) within reasonable time, confirm the receipt of this demand by electronic mail, (ii) within reasonable time, take the necessary measures to comply with the request and (iii) retain a list of persons who have exercised their right to opt out.

2. Legal or regulatory requirements for direct marketing by electronic mail

Notwithstanding other legal and regulatory information requirements, direct marketing by electronic mail (i) must be clearly and unambiguously identifiable by its general presentation, as soon as it is received by the recipient; it even must indicate "advertising" in a readable, clearly visible and unambiguous manner and (ii) must be attributable to the natural or legal person on whose behalf it is sent.

If the electronic mail contains sales promotions, such as price rebates and announcements thereof, contests or games, they must be clearly identifiable as such and the conditions to benefit of these sales promotions or the conditions to participate in these contests or games must be easily complied with and clearly and unambiguously indicated.

3. Conduct of the provider

The provider may not (i) use the electronic contact details or the identity of a third person or (ii) falsify or hide the information to prevent the recipient to track the origin or the delivery route of the electronic mail.

4. Conclusion

By implementing the Directive on electronic commerce and the Directive on privacy and electronic communications, the Belgian legislator finally has modernised the highly criticised Belgian framework on direct marketing by electronic mail.

The current framework strikes a good balance between the privacy interests of the recipients on the one hand and the commercial interests of the providers on the other hand.

It must however be underlined that a legal framework by itself will not resolve the problem of spamming practices, which often originate from providers from outside the Belgian territory. These providers fall outside the Belgian jurisdiction. Good technological measures and common sense will therefore still be required to harness the spamming issue. European direct marketeers however can rest assured: their legitimate interest in exploiting the new communication channels for direct marketing purposes are recognised, be it within certain boundaries.

[1] Published in the Belgian State Gazette on 17 March 2003.
[2] Article 2, 2° of the Law of 11 March on certain legal aspects of information society services, implementing article 2 (h) of the Directive on privacy and electronic communications.