Using data (including personal data) for direct marketing purposes is nothing new. Calling, emailing, sending messages via social media or 'old-fashioned' marketing by post, the possibilities are vast. Regulations on direct marketing and telemarketing have changed a lot in recent years. In practice, we find that organisations are not always up-to-date.
In this blog, you will therefore find an overview of the regulations of common (direct) marketing opportunities. The following opportunities are discussed:
Calling companies (B2B)
'Cold' calling companies to make a commercial offer is permitted. Be aware that this only applies to calling legal entities (such as the bv or a foundation). Moreover, calls must be made by a 'real' person. If you make use of an automatic calling system (e.g. a 'robot call'), in the case of legal persons you need prior permission or the legal person must have opened a specific number for this type of unsolicited communication.
For calling unincorporated businesses, such as sole traders or general partnerships, telemarketing is only allowed if consent has been given (by an opt-in, for example).
There are two important exceptions to this 'consent requirement'. First, an unincorporated company, or a natural person acting as a profession or business, may receive unsolicited calls if a specific telephone number has been opened for this purpose. A general business number does not automatically meet this requirement. It must specifically state that the number is intended for unsolicited commercial communication (e.g. acquisitie@bedrijf.nl).
Secondly, a natural person acting in the course of a profession or business may be called if they are already, or have been, a customer (and have not exercised the right to object, such as via an opt-out). According to the Consumer and Market Authority (ACM), the period that you may approach former customers is a maximum of three years after the last transaction.
Calling consumers (B2C)
The regulations regarding calling consumers are similar to the regulations regarding calling natural persons acting in the course of a profession or business. Consent is necessary, unless that person is (has been) a customer and has not used an opt-out.
Finally, it is important to mention that the above regulations do not apply if it concerns a consumer or company based outside the European Economic Area (EEA). In that case, you may call them without permission. In that case, do take into account locally applicable regulations.
Direct marketing (legally speaking) refers to 'electronic communication without human intervention'. This includes e-mail and SMS, but also messages sent via instant messaging services such as Whatsapp or via social media channels (e.g. LinkedIn).
The regulations here are the same for both legal entities, and natural persons. The basic principle is that direct marketing is not allowed without prior consent if companies or individuals are not yet customers.
If a company has obtained the contact details of a customer (consumer or business) in the context of selling a product or service, no consent is required to send direct marketing. Again, the requirement is that an opt-out must be offered (at the time of data collection as well as at the time the message is sent). In addition, again, you are allowed to approach former customers, up to three years after the last transaction.
Again, it is important to note that the above regulations do not apply if it concerns a consumer or company located outside the EEA. In that case, direct marketing is allowed without consent. In that case, take into account locally applicable regulations.
Do you want to send targeted marketing advertising by post? If so, the Telecommunications Act does not apply. However, as a company, you have to take into account the 'Code Postfilter' of the Advertising Code Committee. Targeted marketing advertising means; all addressed mail. This is all mail addressed to 'the residents of' or using data of a company or personal data of residents.
Addressed advertising mail addressed to companies (B2B)
It is allowed to send unsolicited commercial mail to legal entities or to natural persons acting in the exercise of a profession or business. However, both can register in the Chamber of Commerce's 'non-mailing indicator'. If you want a company to send unsolicited addressed mail for commercial purposes, you first need to check this register to see whether addressees are listed in it. Is a company listed in this register? Then it lacks the 'legitimate interest' for sending this kind of mail.
Addressed advertising mail addressed to consumers (B2C)
A company can also send unsolicited addressed mail with commercial intentions to consumers. In that case, a company must check whether a consumer has registered their details in the Postal Filter(www.postfilter.nl). This registers individuals who do not wish to receive mail. Consumers are also advised to check the National Register of Deceased Persons.
Is a consumer a (former) customer, but registered in the Postal Filter Register? Then, as a company, you may still send addressed advertising. A consumer can then exercise his 'right of objection' with the company.
This blog often refers to the 'consent' condition for sending direct marketing. In the Telecommunications Act, the requirements of 'consent' are aligned with the General Data Protection Regulation (AVG). This means that consent must be given voluntarily and it must be clear what consent is being given for (specifically). Furthermore, a (legal) person must be informed (via a privacy statement) and consent must be given 'unambiguously', i.e. it must not be open to multiple interpretations. Finally, consent must be an active act. So a pre-ticked checkbox is not allowed.
Telemarketing, direct marketing or mail; for any form of marketing, it is important that, as a company, you have your data files in order and log registrations of opt-ins and opt-outs properly.
If you have any questions about sending marketing messages, please feel free to contact one of our specialists from Team IE/IT/Privacy. We will be happy to help you further.