As a matter of principle, the use of email “for advertising purposes” (i.e. “any communication with the direct or indirect objective of promoting the sale of products irrespective of the place or means of communication used”) is forbidden without a prior, free, specific and informed consent of the receiver of the email (“opt-in”), pursuant to Article XII.13 of the Belgian Code of Economic Law (the “Code”).
The existence of such consent has to be proven by the sender. Also, the email itself needs (i) to provide clear and understandable information on how to object to the receipt of such emails in the future, (ii) to indicate the appropriate mean of objection, and (iii) to put this mean as the disposal of the receiver of the email.
That being said, pursuant to the Royal Decree of 4 April 2003 on the regulation of the sending of advertisement by email (the “Decree”), the sender could benefit from an exemption and wouldn’t be required to receive the above consent from his customers if the following conditions are cumulatively fulfilled (the “soft opt-in”):
(i) The sender obtained the contact details directly from a customer as part of a sale of a product or service and to the extent all relevant conditions concerning data protection are complied with (eg. the information requirements)
(ii) The sender uses the contact details only for advertising purposes of “similar” products or services that he provides himself
(iii) When collecting their contact details, the sender offers to his customers the possibility to object free of charge and in an easy way to such use of these data.
Also, no opt-in is required in case of emails sent to legal entities, even if they are not customers, but to the extent that the contact details are not linked to an individual (e.g. info@younity.be).
Failure to comply can lead to fines of up to EUR 300,000.00
The Code and the Decree can be found on:
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2013022819&table_name=loi
More information can be found:
https://www.belgium.be/fr/publications/pub_de_spamming_in_24_vragen_antwoorden
Author: Nicolas Roland, Partner, Younity
