AustriaTKG 2021
Officially Telekommunikationsgesetz 2021 (TKG 2021), Unsolicited Electronic Mail and SMS for Direct Marketing (Section 174(3) to (6))
TKG 2021, BGBl. I Nr. 190/2021, § 174 Abs. 3-6
In force since .
A commercial messages rule binding public and private bodies.
- Obligation class
- Consent, Disclosure, Prohibition
As of .
What it requires
- Obtain the recipient's prior consent before you send electronic mail, SMS included, for direct marketing.
- You need no prior consent to market your own similar products or services by electronic mail if all four conditions hold: you obtained the contact information in connection with a sale or a service to your customers; the message advertises your own similar products or services; the recipient was clearly and distinctly offered the chance to refuse such use of their electronic contact information, free of charge and without difficulty, when you collected it and again with every transmission; and the recipient has not refused in advance, in particular by entry in the list named in section 7(2) of the E-Commerce-Gesetz.
- Do not send direct-marketing electronic mail that disguises or conceals the identity of the sender on whose behalf the message is sent.
- Do not send direct-marketing electronic mail that violates section 6(1) of the E-Commerce-Gesetz, which requires a commercial communication to be clearly and unmistakably recognizable as such and to show who commissioned it.
- Do not ask the recipient of direct-marketing electronic mail to visit websites that violate section 6(1) of the E-Commerce-Gesetz.
- Provide an authentic address to which the recipient can send a request to stop such messages.
If you get it wrong
Criminal exposureNo
Penalty structure
Section 188(4) Z 28: sending electronic mail contrary to section 174(3) or (5) is an administrative offence punishable by a fine of up to 50,000 euro and, if the fine cannot be collected, imprisonment of up to six weeks.
- Rule
- Fixed only
- As of
- Currency
- EUR
- Fixed cap
- 50,000
Who enforces it
Enforcement body
Fernmeldebüro, the telecommunications authority that is competent for the official acts the Act provides for unless otherwise stated (section 192(3)); section 188(11) assigns to the federal government the fines the Fernmeldebüro imposes. Appeal lies to the Bundesverwaltungsgericht (section 192(5)).
What this law does
Section 174(3) makes the sending of electronic mail, SMS included, for direct marketing purposes inadmissible without the recipient's prior consent.
Section 174(4) lifts the consent requirement where the sender obtained the contact information in connection with a sale or a service to its customers, the message advertises its own similar products or services, the recipient was clearly and distinctly offered a free and easy way to refuse such use of the contact information when it was collected and again with every transmission, and the recipient has not refused in advance, in particular by entry in the list named in section 7(2) of the E-Commerce-Gesetz.
Section 174(5) makes direct-marketing electronic mail inadmissible in any case where the sender's identity is disguised or concealed, where section 6(1) of the E-Commerce-Gesetz is violated, where the recipient is asked to visit websites that violate that provision, or where there is no authentic address to which the recipient can send a request to stop such messages.
Section 6(1) of the E-Commerce-Gesetz requires a commercial communication that is part of, or constitutes, an information society service to be clearly and unmistakably recognizable as such and to show who commissioned it. Section 174(6) treats an administrative offence under paragraph 1, 3 or 5 that was not committed in Austria as committed where the unsolicited message reaches the user's connection.
Section 188(4) Z 28 makes sending electronic mail contrary to section 174(3) or (5) an administrative offence. The administrative offences in section 188(4) carry a fine of up to 50,000 euro.
When LexLint raises it
When your app profile says your app sends automated outreach.