CAN I SEND MARKETING E-MAILS TO ANYONE? A SHORT REMINDER OF DIRECT MARKETING RULES

09.06.2021 CAN I SEND MARKETING E-MAILS TO ANYONE? A SHORT REMINDER OF DIRECT MARKETING RULES

First, it should be noted that electronic direct marketing (e.g., marketing done via e-mail and SMS) should be distinguished from other marketing activities (e.g., marketing done via phone and mail and profiling for marketing purposes) because electronic direct marketing is regulated by a special regulation—the e-Privacy Directive (soon to be replaced by the e-Privacy Regulation)—which takes precedence over the GDPR.

In Estonia, electronic direct marketing is regulated by the Electronic Communications Act and in Latvia by the Law on Information Society Services. In Lithuania, electronic direct marketing is regulated by the Law on Electronic Communications Act, in addition, electronic marketing also falls within the ambit of the Law on Advertising (LA). The regulation is mostly similar in all the Baltic States.

When sending electronic direct marketing communications to a natural person, an opt-in consent must be obtained from the data subject before their contact data are used for marketing purposes. The opt-in consent must follow all the requirements for valid consent under the GDPR. This means, among other things, that the consent must be specific and separate consent should be collected for different electronic means of contact (e-mail, SMS, etc.).

An exemption has been made for situations where the electronic contact data of a natural or legal person have been obtained through the sales process and the electronic direct marketing communication concerns products or services that are similar to those already ordered by the same person (“existing customer exemption”). In such cases, the natural or legal person must have clear information on how to opt-out (electronically and free of charge), and such information and option to opt-out must be provided already when the contact data are first collected, but also whenever the contact data are used for direct marketing purposes.

In Estonia and Latvia, where electronic direct marketing communications are sent to legal persons, no opt-in consent is required but it must be possible for the recipient to opt-out and the possibility to opt-out (electronically and free of charge) must be provided whenever the contact data are used for direct marketing. The Lithuanian data protection authority takes a formal and strict approach concerning electronic direct marketing communications addressed to legal persons. It is required that prior consent is obtained from the representative of the company unless the above opt-out rules (under the “existing customer exemption”) apply. 

Additionally, in Lithuania, the LA contains a rather general provision, which stipulates that advertising by telephone, fax, telex, and e-mail may be carried out only with the prior consent or request of the user, whereas direct advertising to such a person is prohibited in the case of his/her prior explicit objection.

In Estonia, the above rules of electronic direct marketing do not apply to multi-party voice calls in real time, which means that, in principle, such calls can be based on legitimate interest under the GDPR, provided the conditions thereof are met. The same applies to marketing done via other non-electronic means, such as regular mail.

The above rules on electronic direct marketing do not apply to notices exchanged during the contract lifetime or in the course of contract management (such as renewal notices, late payment letters, termination notices, etc.).

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