Is sending offer e-mails to potential business partners prohibited?
In this article, we will address a question that interests many of our business clients. Advertising is an inseparable part of the business world and of presenting one’s own products or services. But is it permissible to contact new potential business partners with offers of products and services by unsolicited electronic mail without their prior consent? Is the situation different if you want to send unsolicited mail to a consumer?
In the Slovak Republic, there is a general prohibition on disseminating advertising without the recipient’s consent.
This prohibition is set out directly in several acts, namely:
- in the Advertising Act (Section 3(3) of Act No. 147/2001 Coll., as amended), under which advertising may not be disseminated by an automatic telephone calling system, fax or electronic mail without the prior consent of their user who is the recipient of the advertising.
- in the Electronic Commerce Act (Section 4(6) of Act No. 22/2004 Coll., as amended), under which a service provider may not deliver commercial communications by electronic mail unless the recipient of the service has requested them in advance.
- in the Electronic Communications Act (Section 116(3) of Act No. 452/2021 Coll., as amended; this act transposed Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector): For the purposes of direct marketing, the use of automatic calling and communication systems without human intervention, fax, electronic mail, SMS and MMS towards a subscriber or user is permitted only with their prior demonstrable consent obtained before the subscriber or user is contacted.
It should be noted, however, that the Electronic Communications Act (Section 116(15)) contains two significant exceptions to the general prohibition on disseminating advertising without prior consent, namely:
a) The prior consent of the recipient of electronic mail is not required in the case of direct marketing of a person’s own similar goods and services, if that same person obtained the recipient’s contact details for the delivery of electronic mail in connection with the sale of goods or services in accordance with this act or a special regulation. In other words, the exception applies to direct marketing towards existing customers to whom similar goods or services have already been supplied.
b) The prior consent of the recipient of electronic mail is also not required in the case of direct marketing addressed to the published contact details of a subscriber or user who is a natural person entrepreneur or a legal entity. In other words, if businesses, whether natural or legal persons, have published contact details, offers may be sent to them by electronic mail even without their prior consent.
To sum up, if you want to send marketing offers by e-mail, the recipient’s prior consent is not required:
a) in the case of direct marketing towards existing customers, whether businesses or non-businesses (consumers),
b) in the case of direct marketing using already published contact details of natural person entrepreneurs and legal entities. If a natural person who is not an entrepreneur (a consumer) has published their contact details, e.g. on social networks, the exception does not apply to them and it is prohibited to send them unsolicited electronic mail.
We would also add that the recipient of electronic mail must be given the opportunity to object, easily and free of charge, at any time to such use of their contact details at the time they are collected and with each message delivered, if they have not previously refused such use. If you want to send offers by electronic mail, the recommended solution is to include directly in the e-mail offer a box with text such as “I do not wish to receive such offers”, which the recipient can tick if they do not wish to receive your e-mail offers, or at least to state that they may refuse to receive such offers at any time.
Compliance with the Electronic Communications Act is supervised by the Regulatory Authority for Electronic Communications and Postal Services, which imposes fines if a breach of the act is found. Specifically, for breaches of the provisions on unsolicited communications (Section 116), the fine ranges from EUR 200 to 5% of turnover for the previous accounting period.
As regards the legal regulation in the Czech Republic, the regime there is governed by the Act on Certain Information Society Services, under which (Section 7(2)) commercial communications may be disseminated only to users who have given their prior consent (the only exception being an existing customer to whom you send an offer of similar products or services). The legal regulation in the Czech Republic is therefore considerably stricter. Direct marketing to new potential business partners by e-mail offers without prior consent is not permitted, and breaches may result in sanctions. This restriction naturally applies not only to businesses but also to consumers.
We would add that sending unsolicited mail must also be viewed through the lens of the legislation on personal data protection. Is it acceptable to send offer e-mails if this also involves the processing of personal data, i.e. if you send offer e-mails to e-mail addresses that contain not only company details but also personal data such as a first name and surname?
In short, the GDPR allows personal data to be processed only if you have a legal basis for processing them. One of the legal bases for processing personal data is the legitimate interest of the controller (Article 6(1)(f) GDPR). The processing of personal data in connection with the controller’s direct marketing may be regarded as a legitimate interest of the controller, in particular in situations where a relevant relationship already exists between the parties (a trader – existing client relationship). In other cases, you must demonstrate that your legitimate interest overrides the interests or fundamental rights and freedoms of the data subject which require the protection of personal data (e.g. when promoting relevant goods or services to professionals who are likely to benefit from them). At the same time, for the purposes of direct marketing, the data subject has the right to object at any time to the processing of personal data concerning them (Article 21(2) GDPR), and the data subject must be explicitly informed of this right. The above recommendation therefore applies: already when sending e-mail offers, the recipient must be clearly and transparently given the option to refuse to receive offer e-mails (e.g. by means of an “I do not wish to receive such offers” button).
In conclusion, there are significant differences between the Member States of the European Union in the legal regulation of unsolicited mail. For this reason, before carrying out direct marketing, it is necessary to know the specific legal regime in the country in which you want to approach a potential partner.
Harmonisation of the legal regulation within the EU was to be achieved through the planned ePrivacy Regulation (Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC). Under this regulation, natural and legal persons were to be guaranteed the same protection in the context of electronic communications, with unsolicited marketing communications permitted only with the recipient’s consent. The ePrivacy Regulation was originally intended to take effect at the same time as the General Data Protection Regulation (GDPR). However, we are still waiting for the final wording of this regulation.
