New legislation: direct marketing obligations and cookies

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World & Business - Marketing
Tuesday, 17 April 2012 10:26

On April 2, 2012 came into force last amendment of the Law of Services of the Information Society and Electronic Commerce (known as LSSI ), resulting from the publication of a Royal Decree-Law by transposing - among others, the European directive on privacy in electronic communications (Directive 2009/136/EC).

For practical purposes, some of the modifications set forth in this rule involve the provision of new obligations that we have in mind when carrying out advertising and promotional activities through the medium.

The first set of developments affecting the Section 20 of the LSSI , which is related to the information the user should be offered on commercial communications referred to it electronically. In this case, such modification is the inclusion of a new paragraph 4 to read as follows: "In any case, it is forbidden to send commercial communications in disguising or concealing the identity of the sender on whose behalf the communication is made ​​or contravene the provisions of this article and those in which it encourages recipients to visit websites that contravene the provisions of this Article. "

That is, it adds a new prohibition when it comes to direct marketing activities, which sanctions this practice in which electronic business communication is sent, disguising or concealing the identity of responsible advertising. Ie it is forbidden to send emails for direct marketing purposes without revealing clearly who is the poster or at least the person on whose behalf the communication is made, if they are different. Furthermore, this prohibition extends to a possible transmission of commercial communications by electronic means which encourages the recipient to visit pages where it infringes the provisions of this article.

The second of the innovations introduced by this regulatory amendment affects Article 21.2 of the LSSI , which is the article that regulates spam, and whose second paragraph refers to the exception for which only permits the sending of commercial electronic communications without the consent of the addressee when it is a former client and are met also the conditions in that article. In particular, the second paragraph states that "in any case, the lender must give the recipient the opportunity to object to the processing of your data for promotional purposes via a simple and free, both at the time of data collection and in each a commercial communications addressed to it. "

In this case, the novelty is the inclusion of a new third paragraph of that article, to read as follows: "When communications have been sent by email, this medium must necessarily consist of the inclusion of a valid email address where you can exercise this right, being prohibited the sending of communications that do not include that address. "

This addition seeks to include in any case, an email address enabled, to which the former client to whom commercial e-mails refer to our company, can go in any time to unsubscribe to keep getting more such communications. Thus, aimed at eliminating the practice of sending unsolicited commercial communications by electronic means unsolicited, in which did not include the option for the recipient to opt out of receiving further communications or included an email address or Link did not work.

Finally amending Article 22 of the LSSI ("rights of recipients of services"), which is given a new version where two emphases. A first major change, to insert a requirement such as Article 21.2 set for the purpose of enabling the recipient of commercial communications at any time revoke the consent given by simply notifying the sender of his will. And to this end, it now requires service providers to enable simple and free procedures, which, communications have been sent by mail must "necessarily consist of the inclusion of a valid email address where you can exercise this law it is forbidden to send communications that do not include that address. "

And a second major change, which affects the use of cookies than mere session cookies or those needed to provide a service of the Information Society, as would, for example, tracking cookies or tracking cookies.

In relation to this end, the law passed to require a simple obligation to notify the affected user ("When service providers employ storage devices and data retrieval terminal equipment, inform the recipient in a clear and complete information about its use and purpose, giving them the opportunity to refuse treatment of the data using a simple and free. "), to require the obtaining user consent" after they have provided clear and complete information about its use, in particular, about the purposes of processing data in accordance with the provisions of Organic Law 15/1999 of 13 December on the Protection of Personal Data. "

In practice, the problems are focused on clarifying how that consent should be obtained before the internet, since the Act affects the validity of using these tools effectively to obtain the user's authorization. In relation to this end the Act itself states that "where technically possible and effective, the consent of the recipient to accept the processing of data may be provided by using the appropriate parameters of the browser or other applications, provided that he should proceed its configuration during installation or update using explicit action to that effect. "

However, until such time that the way the browser is generally available, new measures must be implemented, although today know what the criteria will prevail by the competent authority in relation to that obtained the consent of the users that they intend to install certain cookies.


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