Direct Marketing From The Perspective Of Hungarian Data Protection Law

In this article, we provide a brief overview of the data protection implications of direct marketing carried out in Hungary through mail, electronic correspondence (email, fax and sms) and, respectively, telephone.

The major acts governing the main rules concerning the use of certain personal data for direct marketing purposes are as follows:

Act no CXIX of 1995 on the Use of Name and Address Information Serving the Purposes of Research and Direct Marketing (the "Kkt."); Act no CVIII of 2001 on Electronic Commerce and on Information Society Services (the "E-Commerce Act"); Act no C of 2003 on Electronic Communications (the "E-Communications Act"); Act no XLVIII of 2008 on the Basic Requirements and Certain Restrictions of Commercial Advertising Activities (the "Commercial Advertisement Act"); and Act no CXII of 2011 on the Right of Informational Self-Determination and on Freedom of Information (the "Information Act"). The acts mentioned under clauses (i)-(iv) above mainly address the management of personal data which are necessary for contacting the addressees. Management of such personal data which extend beyond the scope of data necessary for contacting the addressee falls within the scope of the Information Act and the prior informed consent of the person concerned is required. The below has to be interpreted accordingly.

1. GENERAL RULE (SECTION 6 (1) OF THE COMMERCIAL ADVERTISEMENT ACT) AND EXCEPTION TO THE RULE (SECTION 6 (4) OF THE COMMERCIAL ADVERTISEMENT ACT)

   As per the Commercial Advertisement Act, prior consent is always needed (opt-in principle) unless a specific act provides otherwise. In this regard, Section 6 (1) of the Commercial Advertisement Act provides that, unless otherwise provided for by specific other legislation, advertisements may be conveyed to natural persons by way of direct contact (direct marketing), such as through electronic mail or equivalent individual communications - subject to the exception referred to as "addressed advertisement material" -, only upon the expressed, explicit prior consent of the person to whom the advertisement is addressed.

   As per Section 6 (4) of the Commercial Advertisement Act, addressed advertisement material may be sent by mail, in accordance with Act CI of 2003 on the Post, to natural persons within the framework of direct marketing in the absence of the prior express consent of the person to whom it is addressed; the advertiser and the advertising service provider, however, are required to provide facilities for the person to whom the advertisement is addressed that allow them to unsubscribe at any time from receiving further advertisement material, freely and at no cost to the addressee. Such unsolicited advertisement material may not be sent by way of direct marketing to the person affected.

   Section 6 (8) of the Commercial Advertisement Act provides that the communication sent to request the statement of consent mentioned in Section 6 (1) may not contain any advertisement, other than the name and description of the company.

   We note that in the case of any doubt as to whether consent has been given, it has to be deemed ex lege that no consent has been given...