European Unione-Commerce Directive
Officially e-Commerce Directive, Commercial Communications and Unsolicited Electronic Mail
Directive 2000/31/EC, Arts. 6 and 7
In force since .
A commercial messages rule binding public and private bodies.
- Obligation class
- Disclosure, Consent
As of .
What it requires
- This Directive is addressed to the Member States (Article 24), which had to bring into force the measures necessary to comply with it before (Article 22(1)), so a service provider meets these rules through each Member State's transposing law.
- It reaches you if you are a service provider, meaning a natural or legal person providing an information society service (Article 2, point (b)), and you send or show a commercial communication that is part of, or constitutes, that service: make the commercial communication clearly identifiable as such, and make the natural or legal person on whose behalf it is made clearly identifiable (Article 6, points (a) and (b)).
- Where promotional offers, such as discounts, premiums and gifts, or promotional competitions or games, are permitted in the Member State where you are established, make them clearly identifiable as such, and make the conditions for qualifying or participating easily accessible and present them clearly and unambiguously (Article 6, points (c) and (d)).
- Where the Member State in which you are established permits unsolicited commercial communication by electronic mail, make each such communication identifiable clearly and unambiguously as such as soon as the recipient receives it (Article 7(1)).
- When you undertake unsolicited commercial communications by electronic mail, consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves (Article 7(2)).
Who enforces it
Enforcement body
Each Member State, which Article 19(1) requires to have adequate means of supervision and investigation necessary to implement the Directive effectively, and which Article 18(1) requires to make court actions available that allow for the rapid adoption of measures, including interim measures, to terminate an alleged infringement.
What this law does
Article 6 requires Member States to ensure that commercial communications which are part of, or constitute, an information society service are clearly identifiable as such and that the natural or legal person on whose behalf the commercial communication is made is clearly identifiable.
Article 6 also requires promotional offers and promotional competitions or games, where permitted in the Member State where the service provider is established, to be clearly identifiable as such, with the conditions for qualifying or participating easily accessible and presented clearly and unambiguously.
Article 2, point (f), defines a commercial communication as any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exercising a regulated profession. Article 2, point (b), defines a service provider as any natural or legal person providing an information society service.
Article 7(1) requires Member States which permit unsolicited commercial communication by electronic mail to ensure that such a communication by a service provider established in their territory is identifiable clearly and unambiguously as such as soon as the recipient receives it.
Article 7(2) requires Member States to take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves.
Recital 30 states that the question of consent by the recipient of certain forms of unsolicited commercial communications is not addressed by the Directive but has already been addressed, in particular, by Directive 97/7/EC and by Directive 97/66/EC. Recital 31 places the opt-out register duty on Member States which allow the sending of unsolicited commercial communications by electronic mail without prior consent of the recipient.
Article 19 of Directive 2002/58/EC repeals Directive 97/66/EC and provides that references made to the repealed Directive are construed as being made to Directive 2002/58/EC. Article 13(1) of Directive 2002/58/EC allows direct marketing by electronic mail only in respect of subscribers or users who have given their prior consent. Article 13(4) of Directive 2002/58/EC prohibits direct-marketing electronic mail that contravenes Article 6 of Directive 2000/31/EC.
Article 20 requires Member States to determine the sanctions applicable to infringements of the national provisions adopted pursuant to the Directive, and the sanctions must be effective, proportionate and dissuasive.
When LexLint raises it
When your app profile says your app sends automated outreach.