use of fax and automated calling machines

02 November 2005

Peter Van de Velde

On 24 August 2005, Belgium adopted a new law in order to implement various provisions of Directive 2002/65/EC concerning the distance marketing of consumer financial services[1]. This new law, however, also contains a (more general) section regulating the use of fax and automated calling machines for direct marketing purposes. By inserting this new provision in the law of 24 August 2005[2], Belgium further implemented Article 13 of the e-Privacy Directive of 12 July 2002[3].

Article 13, 1° of the e-Privacy Directive provides that “the use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent”. For e-mail (including SMS), this opt-in regime was already implemented into Belgian law by Article 14 of the E-Commerce Law of 11 March 2003 and by the Royal Decree of 4 April 2003[4].

However, Belgium had not yet implemented the provisions of Article 13 of the e-Privacy Directive in relation to the use of fax or automated calling machines. For those types of direct marketing communications, a general opt-out regime applies, except where those means would be used in the course of a distance sale (in that case an opt-in regime is provided by Article 82 §2 of the Law of 14 July 1991 on Trade Practices and Consumer Protection, hereafter “the Trade Practices Law”).

This situation will now change as from 1 January 2006, the date on which the Law of 24 August 2005 will enter into force. As from that date, an opt-in regime similar to the opt-in regime for direct marketing by e-mail (and SMS) will apply to the use of fax and automated calling machines.

The Law of 24 August 2005 introduces a new Article 29bis in the “Advertising” chapter of the Trade Practices Law. This new Article 29bis reads as follows:

The use of automated calling systems without human intervention and of fax machines for the purposes of direct marketing is prohibited without the prior, freely given, specific and informed consent of the recipient of the message (…).

The explanatory memorandum of the Law of 24 August 2005 emphasises that the term “direct marketing” is to be understood as “one-to-one marketing”, i.e. marketing that is specifically and personally addressed to a certain individual.

The new Article 29bis further provides that the opt-in regime does not apply where the recipient is a legal person. For legal persons, an opt-out regime applies. Legal persons have the right to object (free of charge) to the future sending of direct marketing messages by fax or automated calling machines. As a general rule, any direct marketing message sent by fax or automated calling machine needs to contain a clear and comprehensible indication of the recipient’s right to object to future messages (regardless of whether the recipient is a natural or a legal person). The burden of proof whether a direct marketing message was solicited by the recipient, lies with the sender of the message.

The new Article 29bis of the Trade Practices Law also provides that the opt-in rule for faxes and automated calling machines can be extended, by Royal Decree, to other (future) types of communications.

Finally, it is interesting to note that Belgium has also taken the opportunity to establish (through the new Article 29bis of the Trade Practices Law) a general opt-out regime for the sending of direct marketing by means other than e-mail, fax or automated calling machine (such as direct marketing by telephone or ordinary mail). So far, no specific opt-in or opt-out rules existed in this field, except for an opt-out rule for direct marketing sent within the course of a distance sale (cf. Article 82 §2, third alinea, of the Trade Practices Law). Under the new regime, it will only be allowed to send direct marketing messages, e.g. by ordinary mail in the absence of a clear objection by the recipient (natural or legal person) to receiving such messages.

In relation to the provision of safeguards against the intrusion of privacy by unsolicited commercial communications, the Belgian legal puzzle is thus being completed a step at a time.



[1] Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC, O.J., L271 of 9 October 2002.

[2] Law of 24 August 2005 implementing various provisions of the Directive distance marketing of financial services and of the e-Privacy Directive, Belgian State Gazette, 31 August 2005.

[3] 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), O.J., L201 of 31 July 2002.

[4] Royal Decree of 4 April 2003 regulating advertising by electronic mail, Belgian State Gazette, 28 May 2003.