One of the most frequent realities that arise, when adapting companies to data protection regulations , is the usual practice that exists to send advertising by email or email to companies or individuals offering their products or services. Sometimes there are doubts about its legality; others, without regard, this practice is accepted as fully legal. Let’s go, then, with the question:
Can I send commercial emails or advertisements via email?
The answer admits nuances, but the general rule is clear: No . It is considered prohibited to send commercial communications or advertising by email.
Article 21: Prohibition of commercial communications made through electronic mail or equivalent means of electronic communication; It is prohibited to send advertising or promotional communications by email or any other electronic means of communication …
What if the recipient of the email authorizes me to do so?
In this case there would be no impediment in sending the advertising of your products or services through email.
… that previously had not been requested or expressly authorized by the addressees of the same.
What if the promotional email sent it to customers?
It would also be allowed to send commercial communications to customers. However, it is allowed when the client previously contracted products or services that are similar to those sent in the commercial mail. That is, we could not send commercial communications, even to our customers, when the product or service is different from the one originally contracted.
For example, if a customer bought us a refrigerator, it could be legitimate to send offers on other appliances, but nothing would justify advertising on rural getaways.
The provisions of the previous section will not apply when there is a prior contractual relationship , provided that the provider had obtained lawfully the contact data of the recipient and used to send commercial communications concerning products or services of your own company. that are similar to those that were initially the object of contracting with the client.
What obligations do I have to fulfill when sending a commercial email?
Even in the cases in which it is allowed to send advertising (customers and recipients who have authorized the shipment), other provisions must be taken into account in order for the shipment to be legal .
- The recipient of the mail has the right to unsubscribe at any time, that is, to object to your continuing to send advertising. Therefore, you must provide a means to oppose the processing of your data for this purpose, which should be simple and free , including an email address or other valid electronic address for it. And this should be done in each and every one of the promotional emails you direct.
- In any case, the provider must offer the recipient the possibility of opposing the processing of their data for promotional purposes through a simple and free procedure, both at the time of data collection and in each of the commercial communications directed to it.
- When the communications have been sent by email, this means must necessarily include the inclusion of an email address or another valid electronic address where this right can be exercised, being prohibited the sending of communications that do not include said address.
Can I collect Internet addresses and send them commercial communications?
Absolutely not . The email addresses you find on the Internet in no case allow you to send commercial emails .
In addition, the Internet is not considered a source of public access (Article 3, j LOPD), but it is that, even if it were, nothing would justify the sending of commercial communications, since it would be an exception provided for in the LOPD, but it would not apply to the law that regulates the sending of commercial communications (LSSI).
If I buy a database, would I be allowed to send commercial emails?
No , not at all. Not only is it not legal to send to these addresses, it is also that sale would be illegal without further ado .
But, if everyone does it?
The answer seems obvious. And it is: nothing gives you the right to send spam because others do.
In conclusion, if what we want to do is send commercial communications by email, we are supposed to handle a personal database. Only that, requires an adaptation to the data protection regulations (LOPD and RGPD), but if we also advertise our products or services via e-mail, we can only do so (according to the LSSI) when:
- Commercial communication is intended for a company or individual that is a customer , that is, there has been a prior contractual relationship with it, and also the communication refers to products or services similar to those that were the subject of such contracting.
- Commercial communication, even if it is not intended for a client, has been requested or expressly authorized by the client .
In all cases in which spam is allowed, the company that sends a commercial communication by e-mail must clearly indicate its identification , its concealment or dissimulation being expressly prohibited.
In addition, the recipient must be given the opportunity to oppose the processing of their data for promotional purposes free of charge and simply , both when collecting data and in each communication. In the case that is sent by email, this right should be able to exercise through this same means in a valid email address. And, in any case, the consent granted for the receipt of commercial communications can be revoked at any time with a simple notification to the provider , who, for this, must enable a simple and free procedure.
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