Can I Send Marketing E-Mails Without Consent (Opt-In) To Former Customers?

• Published date: 13 March 2023
• Subject Matter: Media, Telecoms, IT, Entertainment, Privacy, Data Protection, Advertising, Marketing & Branding
• Law Firm: Timelex
• Author: Mr Bernd Fiten and Geert Somers

On 29 December 2021, a data subject filed a complaint with the Belgian Data Protection Authority (BDPA) due to the receipt of a direct marketing e-mail from a company which he had not been a customer for two years. Was the company allowed to send direct marketing e-mails to former customers without consent? We explain the situation below based on the applicable legal rules and GBA decision 117/2022 of 26 July 2022.

COMPLAINT AGAINST THE RECEIPT OF MARKETING EMAILS

What had happened? A company sent a marketing e-mail to an ex-customer regarding a new telecom brand under the responsibility of the same company. But the person concerned had not been a customer of the company for about two years and he was not using the new telecom brand.

Nevertheless, as an ex-customer, the individual received marketing e-mails regarding the new telecom brand. He was obviously not happy with this and filed an objection to the company and also requested access to his personal data. The company upheld his objection and also provided him with a list of his personal data. The company informed him that his e-mail address was being processed based on its legitimate interest.

The data subject considered that the company could not process his personal data based on its legitimate interest and filed a complaint with the Belgian Data Protection Authority on 29 December 2021.

Before we go into the decision of the Belgian Data Protection Authority, we will first explain below what the law says about sending direct marketing by e-mail.

WHAT DOES THE LAW SAY?

PRIOR CONSENT FOR MARKETING EMAILS (OPT IN)

For sending direct marketing e-mails, the sender must first obtain the prior consent of the recipient. This follows from Article XII.13, '1 of the Economic Law Code: "The use of electronic mail for advertising is prohibited without the prior, free, specific and informed consent of the addressee of the messages." (free translation)

It is up to the sender of the marketing e-mails to prove that this permission was obtained in a valid way (e.g. by logging). Please note that it is not allowed to send an e-mail to obtain such consent, because such an e-mail is also considered a marketing e-mail in itself.

To be clear, this rule only applies to "marketing" e-mails that are usually sent in bulk. Obviously, the sending of a personal e-mail does not require the prior consent of the recipient. But the threshold to speak of a "marketing" e-mail is relatively low. In principle, it concerns every e-mail...