For many companies, digital marketing is a central component of their marketing strategy, and it is therefore crucial to be familiar with the anti-spam provisions of the Marketing Practices Act, as these provisions now extend far beyond the requirement for consent to email marketing.
Violating the anti-spam policy can harm both the company’s customer satisfaction and reputation, and the company risks fines based on the number of illegal spam messages sent.
It is therefore important to understand how to avoid violating anti-spam laws when your company sends out direct marketing.
What is spam?
Spam is defined as unsolicited direct communications sent via email for marketing purposes, where the recipient has not given prior consent to receive such communications.
The ban on spam is based on Section 10 of the Marketing Practices Act, which reads as follows:
“A trader may not contact anyone by electronic mail, an automated calling system, or fax for the purpose of direct marketing unless the person concerned has given their prior consent. Before consent is given, the person concerned must be informed that consent may be withdrawn. The trader must provide a means to withdraw consent easily and free of charge.”
A message is therefore generally considered spam if the following criteria are met:
In general, all types of businesses are covered, regardless of size or industry. This also applies, for example, to individuals who send inquiries regarding a commercial activity.
Marketing that is distributed through consumers or private individuals as intermediaries is therefore also covered by the spam ban. This is the case, for example, when using influencers, “friend referrals,” “tell a friend” campaigns, or requiring users to tag other users in order to participate in a social media contest.
See also our article: Requiring users to tag others in social media contests is illegal
Whether marketing through consumers falls under the spam ban will ultimately depend on whether the company encourages the user to market on its behalf.
Generally speaking, a business’s communication will be subject to the anti-spam provisions if the purpose of the marketing is to sell products or promote the business.
References to the company, products, discounts, promotions, newsletters, contests, and similar content are thus classified as marketing. Similarly, communications that otherwise encourage a transaction constitute marketing. This is the case, for example, when using a feature on an online store that sends the customer a notification that their shopping cart is about to expire or a message stating that “it has been a long time since you last shopped with us.”
If, on the other hand, the communication is a genuine service announcement, it does not constitute marketing and is therefore not covered by the anti-spam regulations. However, it is important to determine whether the communication contains any marketing or branding. A communication that contains both a service announcement (e.g., regarding an update to the terms of service) and marketing (e.g., “Join our customer club and earn discounts”) will be subject to the spam ban.
A communication in which a company asks the recipient for consent to receive marketing materials constitutes marketing in and of itself and is therefore also subject to the anti-spam provisions.
The term “electronic mail” includes, among other things, emails, text messages, digital mail, push notifications, notifications, social media tags, and private messages on social media. A communication is covered by this term regardless of whether it consists of text, audio, voice recordings, video, or images.
Bluetooth marketing does not constitute electronic mail; however, its use as part of a marketing campaign would likely violate fair marketing practices.
The ban on spam does not apply to physical marketing materials; however, businesses are required to verify whether the recipient has opted out of receiving marketing communications, i.e.:
- If the recipient is a consumer: To check whether they are listed on the Robinson List and inform them of their right to opt out of marketing, and
- If the recipient is a business: Check the CVR registry for advertising restrictions.
If your communication meets the above criteria, it is generally considered spam, unless the recipients have given valid consent prior to receiving the communication.
In this context, it is important to note that it makes no difference whether the recipient is a consumer, a business, a public authority, an employee, or a general mailbox
Consent Requirements
The anti-spam law protects recipients from receiving direct electronic marketing to which they have not given their consent. Valid consent is therefore essential for businesses to ensure that marketing communications to consumers, businesses, and others comply with the requirements of Section 10 of the Marketing Practices Act.
For consent to be valid and therefore lawful, the following requirements must be met:
Consent must be given before the individual receives marketing communications. This requirement also means that, as a general rule, you may not send an electronic message requesting consent, since the act of soliciting consent itself constitutes spam.
The recipient must not feel pressured to give consent, nor may consent to marketing be a prerequisite for the recipient to obtain another benefit, service, or similar. For example, the purchase of a product must not be conditional on the customer agreeing to receive marketing.
Under certain conditions, however, it is permissible to incentivize consent for marketing purposes, for example through a contest or similar initiative.
The recipient must know exactly what they are consenting to. For example, it must be clearly stated which companies wish to send marketing materials and what type of marketing is involved.
In addition, information must always be provided on how to withdraw consent.
When obtaining consent, be sure to also refer to a privacy policy where the recipient can find information about how their personal data is processed.
The requirement that consent be specific means that it cannot be used for marketing purposes other than those intended. At the same time, obtaining a broadly worded consent to “receive marketing” is not sufficiently specific.
However, if it is common knowledge which products the company sells, the company may limit itself to obtaining consent for marketing within its product categories.
However, this also means that the company cannot market products from a completely different product category unless this is covered by the consent.
This requirement means that a consent checkbox must not be pre-checked, as the recipient must actively choose to give consent to the marketing.
Consent to marketing must also be separate from other consents. For example, if a user agrees to both the terms of sale and the receipt of marketing materials in the same field, there is doubt as to whether the recipient actually wishes to accept both, rather than just the terms of sale.
At the latest when a recipient gives their consent, they must be informed that the consent may be withdrawn.
It is a requirement that the option to withdraw consent be stated in the consent text and that consent may be withdrawn through the same channel used for the marketing.
This means that if marketing is sent via email, it must be possible to withdraw consent via email.
In addition, a company must be able to demonstrate that it has obtained valid consent. This means that the company must be able to demonstrate to the recipient of a request that the person in question has given consent and that such consent meets the requirements of the law.
It is also important to note that consent lapses if it is not exercised.
This would be the case, for example, if you obtain consent to send out a newsletter but do not send one until a year has passed.
It depends on a specific assessment of how long one can remain passive without the consent lapsing, but the rule of thumb is that consent lapses after a period of inactivity lasting one year.
Exceptions to the spam ban and the consent requirement
There are a few exceptions to the ban on spam, in which case it is not necessary to obtain the recipient’s consent.
Communications whose sole purpose is to provide information about contractual relationships, new features, or changes to terms and conditions are not considered marketing and therefore do not require the recipient’s consent.
However, such service messages must not contain any promotional content for new products or services or branding of the company, as this is considered marketing, which requires consent.
For example, a company might send emails to car buyers about a new feature. If the new feature is simply added to the car’s software, this would be considered a service announcement. If, on the other hand, the feature requires the purchase of a new product, this would be considered marketing.
Under certain conditions, it is permitted to send marketing materials to a former customer without prior consent:
- The customer has purchased a product and provided their email address in connection with the purchase.
- The customer has been clearly and unambiguously informed that he or she will receive marketing for similar products.
- The customer has been informed of the option to opt out of marketing communications and is subsequently reminded of this option with each subsequent contact.
- The inquiry concerns the company’s own products that are similar to those the customer has previously purchased. For example, if a company has sold a car, it may subsequently send offers for oil for that car, but not for other types of vehicles.
It is important to note that all of the above requirements must be metbefore the exception can be applied, and that the practical application of this exception is very limited.
In addition, it is permitted to contact a former customer to ask them to review a specific purchasing experience on a review site such as Trustpilot without the customer’s prior consent.
However, this requires that a product has been sold in connection with the inquiry and that the inquiry is made as a follow-up to that sale. Therefore, there must not be too long a delay before the inquiry is sent to the recipient.
Market research conducted to examine specific market conditions is also not considered marketing subject to the anti-spam provisions.
However, if the survey is (partly) intended to sell products or promote the company, it constitutes marketing. This also includes branding in any email that contains a link to the survey or to a website where the survey is to be completed.
However, the company may include a neutral logo or signature so that the recipient can verify the company’s identity.
Consequences of violating the spam ban
Violations of the anti-spam regulations are subject to fines, but in practice, it is just as important to be aware that violating these regulations can damage a company’s reputation.
The Marketing Practices Act stipulates that violations of the spam ban are punishable by a fine. The amount of the fine is determined based on the scope and severity of the violation. In accordance with the guidelines and practices of the Consumer Ombudsman, the fine is set at a minimum of 20,000 – 50,000 DKK for sending up to 100 spam messages and an additional surcharge of 200 DKK per spam message if more than 100 spam messages have been sent.
If a single newsletter is sent to 30 recipients in violation of the anti-spam regulations, the fine will generally be set at 20,000 DKK.
If the newsletter is sent to 31–50 recipients, the fine is generally set at 30,000 DKK.
If there are more than 50 recipients, the fine is set at 50,000 DKK.
If the company has sent more than 100 messages, the fine will be set at 50,000 DKK plus 200 DKK for each spam message sent in excess of 100. This means that sending 150 messages in violation of the spam ban will generally result in a fine of 60,000 DKK.
However, a fine may be adjusted either upward or downward if special circumstances apply.
Violating the anti-spam regulations can not only result in financial penalties in the form of fines, but can also have serious consequences for a company’s reputation and customer satisfaction.
A company’s advertising, outreach, and communication with customers, partners, leads, and others are often a cornerstone of trust in the company.
Negative reviews and public criticism can cause new customers to hesitate before doing business with the company, and existing customers may choose to switch to competitors who better respect their privacy and communicate in an ethical and lawful manner.
Practical guidelines for complying with the anti-spam policy
When working with digital marketing, it is first and foremost important that you understand which of the company’s marketing activities are subject to the anti-spam regulations. Once you have a clear overview of this, you should consider the following for each individual activity:
Review all emails, text messages, and other electronic communications to ensure they comply with the rules and that consent has been obtained if the content is promotional.
Develop a clear and user-friendly internal process for how you obtain, document, and track consent.
Be sure to keep the consent database up to date and delete any consents that are inactive or have been revoked.
Make sure that relevant employees are familiar with the anti-spam regulations, best marketing practices, and your guidelines on how to ensure that the company’s marketing activities comply with the law.
At CLEMENS, we’re always ready to help you navigate the complex rules governing marketing, including compliance with anti-spam regulations.
If you have any questions about the anti-spam law or marketing legislation in general, or if you need assistance with a case before the Consumer Ombudsman, please feel free to contact our marketing law team.
