The law is pretty clear – but do you know the rules?
When it comes to the sending out marketing material, the Danish law is very strict – so it’s important to know the rules. Breaking the law can result in rather heavy fines – and this actually happens on a regular basis.
At the same time, the law is also pretty clear and straight-forward: Unless you have the consent of a recipient in advance, you cannot send them emails, texts or any other form of electronic communication with the intent of selling or branding. In other words: If you send anyone emails or texts, and they haven’t given you their permission beforehand – your communication is considered as spam – and therefore illegal.
The rules are this strict in order to protect the recipients and their mailboxes, and the heavy regulation is of course also related to the fact, that it is so easy today to send out enormous amounts of marketing material with just a couple of clicks on a mouse.
So what does the law say?
We’ll have to take a closer look at the law regarding marketing in Denmark, §6 [in Danish – sorry about this. See elaboration below]:
“Stk. 1: En erhvervsdrivende må ikke rette henvendelse til nogen ved brug af elektronisk post, et automatisk opkaldssystem eller telefax med henblik på afsætning af varer, fast ejendom og andre formuegoder samt arbejds- og tjenesteydelser, medmindre den pågældende forudgående har anmodet om det.”
The law states, that a company or business must always have the permission of the recepients, before they are allowed to send out any form of electronic “advertising” – whether it’s newsletters, promotional mails, text message campaigns etc. In order to obtain these permissions, it is also important to stress, that a company is not allowed to send an electronic message, let’s say an email, encouraging people to sign up for this – due to the fact that the recipients haven’t given their permission to be contacted yet. And here the challenge arises, because..
…what then is a company supposed to do to obtain permissions?
Luckily, there are many options. Permissions can be obtained through own website and social media – or physically, as in sign ups at conferences or live product demonstrations or from a direct mail campaign etc. All that really matters is, that it is the recipient’s own choice to (request for) receive electronic communication from you. For this very reason, it also makes a lot of sense to make use of the “double opt in”, where the recipient has to confirm his og her permission. In that way, you are sure that this person really wants to receive electronic mail/advertisement from you.
Another possibility is to buy your permissions. We would not recommend this to anyone, though, since it’s very hard to ensure that these permissions live up to the requirements in the law. Another reason for considering a bought list of permissions less attractive is of course also that its sales potential would be rather doubtful. It is always be a lot more attractive to have a list of recipients, who have actively and individually signed up for your particular communication, because they are genuinely interested in what you and your business have to offer.
“An exception” – and then again..
In the law regarding marketing, §6, section 2, it says the following [in Danish – see the elaboration below]:
“Uanset stk. 1 kan en erhvervsdrivende, der fra en kunde har modtaget dennes elektroniske adresse i forbindelse med salg af en vare eller en tjenesteydelse, markedsføre egne tilsvarende produkter eller tjenesteydelser til kunden via elektronisk post. Dette forudsætter dog, at kunden har mulighed for let og gebyrfrit at frabede sig dette både i forbindelse med afgivelsen af adressen til den erhvervsdrivende og ved efterfølgende henvendelser.”
In other words, you can send out your newsletters/advertisements/campaigns etc. to customers who supplied you with their email address or mobile phone number when buying something from you, – as long as the following conditions are met:
- The recipient/customer has to have been made aware – when giving away the personal contact information – that you intend to use this for future marketing purposes
- AND the recipient must have had (and continue to have) the option of saying “No, thanks, leave me alone” with regards to being contacted – both before the permission was given and after, when they’re actually contacted. This should also be made possible, so it’s easy and free to do.
The “No, thanks”-option
In a guide on the rules for electronic marketing, The Consumers’ Ombudsman stresses that it should always be easy and free to regret saying “Yes” to being contacted – and further suggests that you always include an unsubscribe-link in emails, or at the very least an email address you can write to in order to withdraw your permission – and thereby say no to being contacted by a company in the future.
The above mentioned example of including a link for unsubscribing is an easy and obvious way to go, when it comes to newsletters via email, but it is also important to know how to manage unsubscribers, when it comes to SMS campaigns. In this case, you can either add a link to the company homepage, from where the recipients can unsubscribe, or you can set up a 2-way SMS letting the recipients send a text message to a specific number (e.g. UNSUB to 1919) in order to unsubscribe.
About permission: It has to be clear and concrete
When a person gives his or her permission in order to receive newsletters or any other form of electronic marketing from a company, it has to be clear at that very time, which form of communication, the permission is related to (email, SMS, letter) – that is, what types of contact has been accepted by the recipient. This gives us a reason for putting a little more effort into the wording in this regard. If a company has gotten the permission to contact persons with offers by emails, this company is not allowed to suddenly begin sending text messages to these same people – as their permission was only given in relation to being contacted by email. There are several companies who have broken this law and who have been fines accordingly. Additionally – and for the same reasons – it is also important to show clearly who the sender of the communication is.
It is also recommended (but it is not a required by law), that you let your recipients know about how often you will contact them, and what the content of your communication will typically be, etc. In this way, you have given the recipients some nice info on, what they can expect from you – and that is generally just a good thing. If you do so, it most likely will result in fewer spam-reports too – and that is definitely also worth something.
Permisson – and expiration
There are no clear rules in the Danish law for marketing on, when a permission can be said to be expired. The Consumers’ Ombudsman states, though, that a permission can be void, if it hasn’t been used for a longer period of time – which is considered to be 1 year. In other words, it is always a good idea to make use of the permission on a regular basis. This is also supported by the fact that most consumers have an expectation when signing up for a newsletter, that they will hear from the company involved within a short period of time. If too much time passes, before they hear from the company, they will be likely to have forgotten about signing up in the first place – and then the company risks facing spam-reports.
The actual exceptions
It is allowed to send out emails without permission, if the content of these emails is not commercial (“with the intent to sell anything”). This can be service announcements for present customers that the company’s terms and conditions have changed, to give an example. What is crucial is that the message must be clear of any commercial content.
The short and sweet
To put it short, there are three simple rules to follow, when it comes to contacting via electronic marketing:
- NEVER send out electronic mail WITHOUT having the permission of the recipient
- Only use the media, that the recipient has given his or her permission for
- Make it easy for the recipient to unsubscribe from your communication
Do you want to read more?
You can find more info on the rules and regulations regarding permission at The Consumers’ Ombudsman here [in Danish]
– and about what is considered spam (and thereby against the law) when it comes to electronic marketing – here [in Danish].