Direct marketing

Question 1

What is the scope of direct marketing by Article 29 WP?

Answer 1

Direct marketing includes any form of sales promotion, including direct marketing by charities and political organisations for fund raising purposes.

Does not need to offer something for sale- can be a promotion of a free offer or just promote the sender’s organization in some way.

Should be directed at particular individuals.

Question 2

What marketing messages are not considered direct marketing?

Answer 2

• not directed at individuals or mailers to companies without contact persons mentioned
• messages that are purely service related in nature

Question 3

How does the right to opt out differ under the GDPR compared to the Directive?

Answer 3

• GDPR makes it clear that opt-out also applies if the data collection and further processing is based on the “legitimate interest” processing condition
• Right to opt out should be explicitly brought to data subject’s attention and be presented clearly and separately from other information
• opt out right must be applicable for all marketing channels
• data Controllers honour opt out requests in a timely fashion and at no cost to the individual
• personal data be deleted unless retention is strictly required
• profiling data must be removed as well

Question 4

What are the exceptions for personal data to be deleted when the opt out right is exercised?

Answer 4

• compelling legitimate grounds for continued processing
• Retention is necessary
• Retention is for the establishment, exercise or defence of legal claims

Question 5

What does Article 13(3) of the ePrivacy Directive state?

Answer 5

Allows member states to decide under their national laws whether person-to-person telephone marketing should be conducted on an opt-in or opt-out basis.

But at a minimum member states must ensure that individuals have a means by which to opt out free of charge from direct telephone marketing

Question 6

Which countries require marketing communications delivered by automated calling systems to provide the identity and contact details of the caller?

Answer 6

Poland and the UK

Question 7

What is the exemption for data Controllers to send electronic mail marketing on an opt out basis?

Answer 7

• The data Controller obtained the contact details in the context of the sale of a product or a service
• The data controller sends direct marketing to those individuals about its own similar products or services only
• The data controller clearly and distinctly gives opt out opportunity in a way that is simple and free of charge

Question 8

For the opt-out exception, which member states require that individuals ‘ contact details must have been collected in the course of a sale?

Answer 8

Austria, Belgium and Denmark

Question 9

For the opt-out exception, which member states are more flexible and also apply it to contact details obtained where no sales were made?

Answer 9

Netherlands and UK

Question 10

What are the requirements under the ePrivacy Directive for direct electronic mail marketing?

Answer 10

Data Controllers must provide individuals with a valid address to which they can send an opt-out request which is appropriate to the medium by which the marketing communication was sent.

Question 11

When do the location data rules under the ePrivacy Directive not apply?

Answer 11

Location data of individual rather than the terminal equipment.

Question 12

Which entity is the data controller in a third party ad network arrangement when personal data is collected for OBA?

Answer 12

The WP29 considers that:
- ad networks will often qualify as data Controllers because they have complete control over the purposes and means for which website visitors’ information is processed

• website publisher may qualify as joint data controller
• advertisers may qualify

Question 13

What are the new amendments to the ePrivacy Directive by the Citizens Rights Directive directed at?

Answer 13

Encouraging a greater level of civil action against spam marketers- principally by ISPs