Revised Guidelines on Spam

Date 28 jan. 2014
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In December 2013 the Danish Consumer Ombudsman published a revised guidance paper to the Danish Marketing Act Section 6 regarding unsolicited communication with specific customers.

 

The revised guidelines provide further clarification of the communications covered by the restriction on the possibility for traders to send out advertisements.

 

The Danish Marketing Act Section 6

The Danish Marketing Act Section 6 limits the scope for traders to advertise to consumers, traders and public authorities. The restriction applies to both electronic mail and other direct communication. Violation of this provision may lead to the trader being charged with a fine.

 

Inquiries covered by the Ban on Advertising

In general, a consumer must be able to cancel an order process on the internet if he or she decides not to complete the purchase. In this regard, the Danish Consumer Ombudsman has held that it is a breach of the Danish Marketing Act Section 6 if the operator sends a "service email" to make the consumer aware that the order has been disconnected and how the order can be restored.

 

In addition, the Danish Consumer Ombudsman has made it clear that a trader may not send unsolicited emails to existing customers who have not shopped for a period of longer or shorter duration to get the customer back in the store. It may be allowed, however, if the customer in an earlier trade has given his or her contact information to the trader and in that connection has had the option of refusing advertising.

 

Finally, the Danish Consumer Ombudsman specifies that any other direct communication is legal if the communication in question is mailings that are not addressed to any particular person, but to an unspecified group of potential customers. For example an advertising cover provided with an address but no name, distributed by “Post Danmark” to all mail recipients in Denmark.

 

Cross-border Marketing

Due to the fact that the Danish Marketing Act Section 6 is based on an EU directive, the Danish traders following the provision can assume that they also comply with the rules in other EU countries.

 

However, there may be small differences in the way each EU country interprets the rules. The guidelines emphasize that in the case of other means of remote communication, such as direct mail, the Danish traders must follow the regulations in the country to which the marketing is directed. This is because the member states can choose whether to prohibit or allow such communications.

 

The Enforcement

Any company that violate the Danish Marketing Act Section 6 paragraph 1 may be fined. The Danish Consumer Ombudsman applies a calculation model to determine the fines and the courts comply with this calculation model.

 

According to the calculation model the minimum fine is DKK 10,000 for up to 100 violations. More than 100 violations will result in a fine of DKK 100 for each violation.

 

Thus a fine for 90 violations will be DKK 10,000 (since it is less than 100 violations) and for 110 violations the fine level will be DKK 11,000.

 

However, determining the amount of the fine depends on an individual assessment of the facts in the case. The level of fines may be deviated from in an upwards or downwards direction depending on whether there are aggravating or mitigating circumstances.

 

For instance, a criminal record of violating the Danish Marketing Act Section 6 can be an aggravating factor. Conversely, a fine may be reduced in the case of an insignificant number of unsolicited communications.

 

Our Opinion

We are experiencing an increased focus from our clients for ways to carry out electronic marketing to their own customers. The scopes of the electronic marketing are therefore constantly more relevant and we believe that the revised guidelines from the Danish Consumer Ombudsman will make it easier for the traders to comply with the rules in the Danish Marketing Act.

 

[You can find the revised spam guide here (link in Danish) ]

 

Should you have any questions or wish further information on the above, please contact partner Pernille Nørkær (pno@mwblaw.dk) or Senior Associate Henrik Syskind Pedersen (hsp@mwblaw.dk).


 

The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions or considerations.