Can my e-communication be prohibited as spam or unlawful use of data? (cont’d)
(c) How to avoid classification as ‘spam’
Given the broad definition of ‘electronic mail’, many means of e-communication fall within the scope thereof and are therefore subject to the prohibition of advertising without obtaining a ‘(soft) opt-in’.
If the company does not restrict itself to public e-communication, it must avoid its e-communication by electronic mail being considered as ‘spam’. There are two ways to do so:
- the company can rely upon a ‘soft opt-in’ (only for existing clients) or
- the company obtains the prior, free, specific and informed consent of the recipient.
Consequently, it is important to know how to obtain such consent.
One way of doing so is to ask consent through a website. Steps to that effect and that are easily implemented include the addition on the website of a form to subscribe to newsletters or a checkbox on the registration page according to which the company is granted permission to use the data thus collected for purposes of direct marketing (the text relating to this authorisation must be carefully drafted and include all the required indications).
Another solution is to use an electronic mail specifically dedicated to the request for permission. Companies are allowed to send an e-mail to ask for the consent of the relevant person, provided the e-mail does not contain any advertising whatsoever and provided its subject-matter and purpose is made clear [Note: The Belgian Ministry of Economy has listed the various requirements to be met for such electronic mail to be lawful. See Belgian Ministry of Economy, ‘Spamming’ in 24 questions & answers, January 2005, pp. 12-13 (in French, in Dutch).].