In the world of business, every company shares a common goal: to sell. One effective way to achieve this is through direct marketing emails. Direct marketing is the practice of reaching out to potential customers directly to deliver personalised messages and offers. This personalised approach helps build relationships, increase sales and create loyal customers. However, when using direct marketing, it’s important for businesses to understand the laws that regulate it. In this article, we’ll explore the rules and regulations governing both B2B (business-to-business) and B2C (business-to-consumer) direct marketing emails in different countries.
While businesses engage in direct marketing to expand their reach and drive sales, it’s crucial to recognise that the rules governing such practices vary significantly across different countries. Even within the European Union (“EU”), where harmonisation of laws is pursued, distinctions exist between B2B and B2C direct marketing regulations. What might be permissible in one country could be prohibited or subject to different requirements in another. This article will explore the following countries: Austria, Belgium, Denmark and the United Kingdom (“UK”).
Austria
B2C and B2B
• In Austria, B2B and B2C direct marketing via email is subject to specific regulations to ensure responsible and transparent communication.
• To send direct marketing emails to individuals or businesses, explicit prior consent is required in the form of double opt-in, where the recipient confirms their subscription twice.
• Before sending any emails, businesses should screen internal “do not contact/unsubscribe” lists and ensure clear identification of the sender along with an opt-out/unsubscribe option in every message.
• Businesses may choose to screen against the Austrian Robinson List, which is a register of individuals and businesses who do not wish to receive unsolicited marketing communications. However, setting up an entity in Austria is required for this option.
Belgium
B2C
• Businesses can only send direct marketing emails to individual recipients in Belgium if it has obtained explicit prior consent, typically obtained through a single opt-in process. This means that the recipient voluntarily subscribes to receive marketing communications by actively opting in once.
• When sending emails to individuals, businesses in Belgium are required to provide clear and comprehensive information regarding the right to opt-out/unsubscribe from receiving advertisements in the future, along with clear identification and contact information.
• However, explicit prior consent may not be necessary if specific conditions are met, known as the soft opt-in. These conditions include obtaining contact details directly in the context of the sale of a product or service, using the contact details solely for marketing the service provider's own similar products or services and providing recipients with the opportunity to refuse marketing free of charge and in an easy way.
B2B
• Businesses are allowed to send direct marketing emails to other businesses without explicit prior consent if the contact details used are impersonal, even if the business is not an existing customer.
• However, if the business is sending an email to an individual within a business, not a generic business email address, the rules on B2C direct marketing apply.
Denmark
B2C and B2B
• In Denmark, sending direct marketing emails to individuals and businesses is permitted only with explicit prior consent from the recipient, typically obtained through a single opt-in process. This means that the recipient voluntarily subscribes to receive marketing communications by actively opting in once.
• Furthermore, businesses are required to include an opt-out/unsubscribe option in every email, along with clear identification and contact information.
• Additionally, any conditions related to sales promotions must be easily accessible and presented clearly. It’s crucial for businesses to ensure that recipients are not directed to websites that do not comply with these requirements, necessitating thorough checks of their own websites and those of their customers.
• Businesses who acquire electronic contact details from an individual or business during a product sale can engage in direct marketing of similar products, relying on the soft opt-in. This means that explicit prior consent is not required. However, businesses must explicitly offer them the option to decline to such marketing activities, free of charge and in an easily accessible manner.
UK
B2C
• To email an individual, explicit prior consent must be obtained, typically through a single opt-in system such as ticking a box.
• Additionally, businesses can email existing customers who have previously purchased or expressed interest in similar products or services, relying on the soft opt-in. This means that while explicit prior consent is not required, customers must have been given a clear opportunity to opt out of marketing emails at the point of data collection and in every subsequent message.
B2B
• In the UK, businesses are allowed to send marketing emails to other businesses without requiring their explicit prior consent.
• However, it’s essential to maintain transparency by clearly identifying the sender and providing a valid business address for opt-out or unsubscribe requests.
• While there’s no legal obligation to obtain explicit prior consent from businesses, maintaining a “do not contact” list for those who object or opt-out is necessary.
• It’s crucial to note that sole traders and some partnerships are treated as individuals under PECR, meaning electronic marketing to them requires explicit prior consent or falls under the soft opt-in provision.
Penalties
Understanding and adhering to direct marketing laws is crucial for businesses to avoid severe penalties.
• Austria imposes penalties of up to €100,000 for direct marketing law breaches, with potential imprisonment of six weeks for non-payment.
• The UK enforces civil penalties of up to £500,000 for direct marketing law breaches, which can be assigned to either the organisation or specific individuals. Criminal liability may also be pursued.
• In Denmark, direct marketing breaches may incur fines of up to €4 million or 4% of annual worldwide turnover. Criminal liability includes imprisonment for six months for data protection law non-compliance.
These penalties underscore the importance of compliance with direct marketing laws to avoid repercussions and safeguard business operations.
Aria Grace Law CIC
Understanding and adhering to legal regulations applicable to B2B and B2C direct marketing in each jurisdiction are paramount for businesses aiming to operate compliantly and effectively in the global marketplace.
At Aria Grace Law CIC, our data privacy and marketing law team is equipped with the knowledge and expertise to assist businesses in understanding and implementing the necessary measures to comply with direct marketing laws across different jurisdictions. If you want to find out more information, please get in touch with us at privacy@aria-grace.com.
Article by Puja Modha (Partner) and Sarah Davies (Trainee Solicitor) – 4 April 2024