Important changes to existing laws on marketing have been introduced with effect from 1 July 2011 by the EC (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (the “Regulations”) in effect, the Regulations have strengthened the laws which apply to electronic marketing and phone calls.

It is now an offence for an organisation to call a person for marketing purposes on their mobile phone without the prior consent of the subscriber or user. Previously, such marketing was the subject of an opt-out right (i.e. the right of the subscriber or user to object to such marketing) rather than requiring the prior opt-in consent of such subscriber/user. The new Regulations also deal with circumstances where an SMS message is sent to a subscriber/user primarily for non-marketing purposes (e.g. an information service message) but also includes information intended for the purpose of direct marketing. The inclusion of any marketing content now requires the prior consent of the subscriber/user. Interestingly, however, the requirements are specified as applying to SMS messages rather than more generally to electronic mail.

The Regulations have also clarified the circumstances when an organisation may rely on a “soft opt-in” when marketing by electronic mail to existing or recent customers as well as amending the fines which may apply to marketing which is in breach of the Regulations.

The Regulations have also provided clarification on the circumstances when marketing will be regarded as being targeted at an individual or business. This is important as opt-ins apply to many forms of marketing to individuals, whereas marketing to business is more usually subject to an opt-out. The Regulations provide that the sending of marketing messages to an email address used merely by the subscriber in the context of their business activities will be regarded as marketing to business where the marketing message relates solely to those business activities. In light of the recent changes, the rules in relation to marketing under both the Regulations and the Data Protection Acts are as follows:

• An organisation may not contact an individual for marketing purposes by fax, electronic mail (which includes SMS messages) or automated calling-machine unless their express prior consent has been obtained. This is referred to as an “Opt-In” requirement.
• There is one limited exception in relation to the Opt-In requirement. Marketing by electronic mail (which includes SMS messages) to existing customers who are individuals is permitted without obtaining express prior consent provided that:
•  The organisation complied with the Data Protection Acts when the individual’s personal data was collected originally;
• The organisation is marketing its own products or services, and they are similar to those which the individual bought previously from the organisation;
• The company offered an opt-out from e-mail marketing when personal data was initially collected;
• Each time the individual is contacted he is given the opportunity to object, in a cost-free and easy manner, to the receipt of further marketing communications by e-mail; and
• The sale of the product or service occurred within the previous 12 months or the contact details were used for direct marketing by electronic mail during the 12 month period (this is designed to ensure that the individual being targeted with marketing can be regarded as an “existing” or “recent” customer).

This is known as a “Soft Opt-In” requirement.

• Individuals may be contacted by any other means (e.g. post or person-toperson phone call to a land-line) without obtaining their consent beforehand provided that:
• They have not previously objected to the receipt of marketing communications by such means; and
• They are given the opportunity each time they are contacted to object, in a cost-free and easy manner, to the receipt of further marketing communications by such means.

This is referred to as an “Opt-Out” requirement.

• An “Opt-Out” requirement also applies in respect of corporate bodies who may be contacted for marketing purposes by any means (other than calls to mobile phones) provided that:
• They have not previously objected to the receipt of marketing communications; and
• Each time they are contacted they are given the opportunity to object, in a cost-free and easy manner, to the receipt of further marketing communications.
• An organisation may not call an individual or corporate for marketing purposes on their mobile phone without the prior consent of such individual or corporate. This is also an “opt-in” requirement.
• Where a company wishes to engage in marketing by phone, it also needs to ensure that it does not contact any persons who have registered a nonmarketing preference with the National Directory Database.
• Breach of the Data Protection Acts is mainly a civil wrong which can result in decisions, enforcement notices or information notices being issued by the Data Protection Commissioner against the company in breach. Failure to comply with an enforcement notice or information notice is a criminal offence which can result in fines of up to €4,000 (summary proceedings) or €100,000 (proceedings on indictment).
• Breach of the marketing provisions of the Regulations is a criminal offence. Fines of up to €5,000 per offence apply to summary proceedings. Fines of up to €250,000 apply to proceedings on indictment. Each message sent in breach of the Regulations is regarded as a separate offence. Technically, this could mean that an e-mail marketing campaign which results in, say, 1,000 e-mails being sent in breach of the Regulations, could constitute 1,000 separate offences.

Paul Lavery
Partner
DDI
+353-1-607 1330
email: paul.lavery@mccannfitzgerald.ie

Annette Hogan
Partner
DDI
+353-1-607 1207
email: annette.hogan@mccannfitzgerald.ie

McCann Fitzgerald
Riverside One
Sir John Rogerson's Quay
Dublin 2
T +353 1 829 0000
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