BelgiumCode de droit économique, Article XII.13, Advertising by Electronic Mail
Code de droit économique, art. XII.13; arts. XV.120-XV.121
In force since .
A commercial messages rule binding private bodies.
- Obligation class
- Consent, Disclosure, Prohibition
As of .
What it requires
- Obtain the recipient's prior, free, specific and informed consent before sending advertising by electronic mail, a term the Code defines as any text, voice, sound or image message sent by a public communications network and stored until the recipient retrieves it, which the Data Protection Authority reads as covering email and SMS.
- You need no prior consent to send advertising by electronic mail to your own customers, natural or legal persons, if you obtained their electronic contact details directly in the sale of a product or service in compliance with privacy requirements, use them for advertising exclusively for analogous products or services that you supply yourself, and gave customers, when the details were collected, the means to object free of charge and in a simple manner to that use (Royal Decree of , Article 1, point 1°).
- In every advertisement you send by electronic mail, give clear and comprehensible information on the right to object to receiving advertising in the future, and indicate and make available an appropriate means of exercising that right electronically.
- Never use a third party's electronic address or identity, falsify or mask information that identifies the origin or transmission path of the message, or encourage the recipient to visit websites that breach Article XII.12.
- Be ready to prove that the advertising you sent by electronic mail was solicited, because the burden of that proof is on the provider.
If you get it wrong
Criminal exposureYes
Criminal exposure note
In the text the Chamber adopted in 2013, Article XV.120 punishes sending advertising by electronic mail in breach of Article XII.13 with a level 3 sanction, and Article XV.121 punishes a breach committed in bad faith with a level 4 sanction.
What this law does
In the text that the Chamber of Representatives adopted in plenary session on when inserting Book XII into the Code de droit économique, Article XII.13, paragraph 1 prohibits the use of electronic mail for advertising without the prior, free, specific and informed consent of the recipient of the messages. The King may, on a joint proposal of the Minister and the Minister of Justice, provide for exceptions to that prohibition.
The Data Protection Authority identifies the Royal Decree of , Article 1, point 1° as such an exception: a provider need not ask for prior consent to send advertising by electronic mail to its customers, natural or legal persons, when it obtained their electronic contact details directly in the sale of a product or service, in compliance with privacy requirements, uses them for advertising exclusively for analogous products or services that it supplies itself, and gives its customers, when the details are collected, the means to object, free of charge and in a simple manner, to that use.
Under Article XII.13, paragraph 2, when sending any advertising by electronic mail the provider gives clear and comprehensible information on the right to object to receiving advertising in the future and indicates and makes available an appropriate means of exercising that right electronically.
Under paragraph 3, it is prohibited, when sending advertising by electronic mail, to use the electronic address or the identity of a third party, to falsify or mask any information that identifies the origin of the message or its transmission path, or to encourage the recipient to visit websites that breach Article XII.12. Under paragraph 4, the provider bears the burden of proving that advertising by electronic mail was solicited.
Article XV.120 of that text punishes with a level 3 sanction those who send advertising by electronic mail in breach of Article XII.13. Article XV.121 of that text punishes with a level 4 sanction those who commit a breach of Article XII.13 in bad faith.
Article I.18, point 2° of the Code defines electronic mail as any message in the form of text, voice, sound or image sent by a public communications network that can be stored in the network or in the recipient's terminal equipment until the recipient retrieves it. The Data Protection Authority considers that this definition clearly covers emails and SMS messages. The Act inserting Book XII provides that the King sets the date on which each of its provisions enters into force.
When LexLint raises it
When your app profile says your app sends automated outreach.