Can my e-communication be prohibited as spam or unlawful use of data?
(a) What is ‘spam’?
One generally associates the word ‘spam’ [Note: A word that comes to us from canned meat and a Monty Python sketch featuring Vikings.] with Viagra-related offers and wills of Nigerian presidents (where the recipient is promised a fortune subject to payment of an amount for recovery of the assets) [Note: C. HERLEY of Microsoft Research examined the popularity of Nigeria in this respect: ‘Why do Nigerian scammers say they are from Nigeria?’ (view online).].
However, ‘spam’ is broader and covers all unsolicited advertising received by electronic mail, whether it is an e-mail of dubious origin or whether it clearly comes from a large company.
Under the AISS, the use of electronic mail for advertising purposes is prohibited, except in the case of prior, free, specific and informed consent of the recipient of the message [Note: Rough translation.
French text: "L’utilisation du courrier électronique à des fins de publicité est interdite, sans le consentement préalable, libre, spécifique et informé du destinataire des messages."
Dutch text: "Het gebruik van elektronische post voor reclame is verboden zonder de voorafgaande, vrije, specifieke en geïnformeerde toestemming van de geadresseerde van de boodschappen."]. ‘Opt-in’ (a deliberate choice, as opposed to the choice by default, ‘opt out’) is therefore the rule for commercial communications by electronic mail.
Advertising by electronic mail will nevertheless be permitted, even in the absence of prior, free, specific and informed consent, if all of the following requirements are met (the so-called ‘soft opt-in’):
- The recipients must be existing clients of the sender,
- The communication must solely pertain to products and services of the sender that are similar to those for which the recipient became a client of the sender, and
- The sender must provide its clients with the possibility to object to such communications (at the time of collection of the data, but also on the occasion of any later use, as will be examined later).
It follows from the above that potential clients are not covered by the ‘soft opt-in’.
In the absence of consent of the recipient and if the requirements for the ‘soft opt-in’ exception are not met, sending advertising by electronic mail will be deemed to be spam and therefore unlawful.