Commercial Communications by electronic means: newsletters

At the time of carrying out marketing communications by e-mail as, for example, digital publications with articles of interest about the brand or their field of services (¨Newsletters¨), it should be observed that there are two regulations that always have the same affect. For one, the Law 34/2002 of July 11, on services of the society of information and electronic commerce (¨LSSI¨, its Spanish acronym) and, for another, the Organic Law 15/1999, of December 13, on the Protection of Personal Data (¨LOPD¨, its Spanish acronym) and the Royal Decree 1720/2007, which approves the Regulation of Development of the LOPD.

The LSSI regulates the electronic communications (shipping of Newsletters by any other mean, like ground post, being excluded from its field of application) and the LOPD is in charge of ensuring the protection of the personal data that is used to that end.

We review the principal obligations for the transmitter of Newsletters arranged by the referred regulations:

• In terms of LOPD:

1. That the data of the recipients have been collected according to the arrangement in the regulation of data protection (existence of a subscribed file in the Registry of the Spanish Agency of Data Protection, having fulfilled the right to information in the collection of data and the obtainment of the consent of the interested, adopting the necessary security measures) or that they figure in sources accessible to the public (such as lists of people belonging to professional groups).

2. In the use of email marketing platforms, special observance to (i) the location of the servers housing the data (since if it takes place outside of the Economic European Space, the communication or access to the data by the supplier will have the consideration of international transference of data and, thus, the need to observe the content of articles 33 and 34 of the LOPD); and (ii) the profile of the supplier of the email marketing services, with whom a data processor contract should be subscribed, that offers warrantees over the treatment of data to be made.

• In terms of LSSI:

1. Clear identification that it is a commercial communication.

2. Identification of who does it (the delivery of commercial communications that dissimulate or hide the identity of the sender is prohibited).

3. That the data has been previously requested or expressly authorized by the recipients of the same. In every case? No. If a previous contractual relationship exists and the commercial communications are referring to products or services of their own business who similarly were initially object of contract with the client, express authorization will not be necessary.

4. Revocation of ¨consent¨: The recipient may revoke the consent of the reception of commercial communications at any moment with a simple notification to the sender. To this end, the communications sent by email should include an e-mail address or other valid electronic address where this right can be exercised.

Additionally, the receivers of commercial communications may avoid unwanted publicity by freely registering their personal data on the file of adds exclusion ¨Robinson List¨ (www.listarobinson.es), created for the protection provided in article 49.1 of the Regulation of the LOPD.

Written by Belén Berlanga, Adarve Abogados