December 20, 2018
The new spam guide allows the company to subsequently expand its consent to include new products and new forms of communication. In addition, it is opened up that the company's product categories can in some cases simply be stated as "our product range". The guide also contains new requirements for consent to marketing on social media, as well as requiring "no-thank-list" when using rating portals (eg trust pilot).
Friday, January 25, 2019, at. 14, the Consumer Ombudsman holds an information meeting on the new spam guide. Location: Carl Jacobsens väg 35, 2500 Valby. Registration: send mail to email@example.com no later than 18 January 2019 with information on the number of participants.
The Consumer Ombudsman has today (20.12.2018) published his new spam guide, which can be found here. However, the guidance must be read and understood in accordance with the Data Inspectorate's guidelines on the consent and the rights of registered persons, which can be found here.
The guide is the Consumer Ombudsman's interpretation of the rules, but in the end it is the courts that decide whether the marketing law has been violated, including whether a criminal offense has been committed.
WHAT IS NEW?
The rules on inquiries using other means of remote communication than electronic mail, eg letters with or without name, automatic call systems, fax and telephone, are not dealt with in the spam guide. The Consumer Ombudsman expects to publish a guide for telephone inquiries in 2019.
Customers can legally send customers and request a review of their buying experience at a rating portal, provided that a number of conditions are met. As something new, the Consumer Ombudsman requires that the company conducts its own "no-thank-you list" for such inquiries. If the company sends inquiries anyway, it will be contrary to good marketing practice. However, it is possible, based on a concrete assessment, to have a contractual term which nevertheless entitles the company to send such inquiries.
The special conditions that apply to social media are described in Appendix 1 to the guide. The Consumer Ombudsman demands as a new requirement that (1) all social media be explicitly stated, and (2) the specific form of communication (eg private message, notifications, etc.) must be stated. It is therefore no longer sufficient to state "e-mail, SMS and social media". Instead, you must specify eg "e-mail, SMS, notifications and private messages on Facebook, Instagram and Twitter".
Formerly, the Consumer Ombudsman asked for an exhaustive listing of all products that the consent should include. After the new marketing law (2017), however, it is sufficient to write eg "our product range". The new guide states that it must be generally known which product categories the company has in its range: a supermarket chain (under the same legal entity) also offers products that are normally associated with a supermarket's product range, such as air travel or banking products, it must Specified if consent is also required to send marketing about these product categories. It is the sender who has the burden of proof of what is generally known in the company's product range.
If the consent includes several companies that are not naturally delimited as eg the companies in the group, the number of companies must be stated together with the information that one gives consent. According to the Consumer Ombudsman's opinion, it is not enough that the number appears in a mouse-over function or by a link. It will, for example, be sufficient specification if it is stated that consent is given to the "15 sponsors of the competition" with a link that shows who these companies are.
An existing legal consent can be used to encourage the recipient to extend the consent to new forms of communication and product categories - (eg new business partners).
Example: "You have signed up for marketing by mail about news and offers within our product range. If you also want to receive marketing from us by SMS, you can update your consent by clicking here ”
There is no obstacle to offering the recipient an advantage by updating the consent, eg participation in a competition, as long as the guidance is observed.
If a consent has been obtained as part of a competition where the recipient consents to receive marketing from many companies, it is the Consumer Ombudsman's opinion that the consent, based on expectation, has lapsed if the entity has not used the consent for a year after that the consent has been obtained. In other cases, it will depend on a concrete assessment when a consent lapses as a result of inaction.
If a customer has an electronic address in connection with a purchase, the seller can market own corresponding products via the electronic address without prior consent. The Consumer Ombudsman gives in his guide a number of new examples of what, in the Consumer Ombudsman's opinion, are "similar products". : If a customer has bought a flight ticket, the purchase of suitcase, food on board and upgrading the ticket will be "equivalent products". If a customer has bought a piece of furniture in a warehouse, marketing of pots will not be "similar products". If a customer has bought a phone, a television will not be "similar products".
Keep in mind that non-compliance with the Marketing Law's rules on spam can also be a violation of the Data Protection Act. If you have any questions, please feel free to contact us.
CVR nr. 39374757