FranceCode des postes et des communications électroniques Article L. 34-5, Prior Consent to Direct Marketing by Automated Systems, Fax and Email
Code des postes et des communications électroniques, art. L. 34-5
In force.
A commercial messages rule binding public and private bodies.
- Obligation class
- Consent, Disclosure
As of .
What it requires
- Obtain the prior consent of an individual, subscriber or user before sending direct marketing that uses their contact details by email, by fax or through an automated electronic communications system within the meaning of 6° of Article L. 32. Consent is a free, specific and informed expression of will to have their personal data used for direct marketing.
- Treat as direct marketing any message that promotes, directly or indirectly, goods, services or the image of a person selling goods or providing services, including calls and messages that invite the user or subscriber to call a premium-rate number or send a premium-rate text message.
- You may email direct marketing without fresh consent only where the recipient's details were collected from them, in compliance with the Loi Informatique et Libertés, in connection with a sale or a provision of services, the marketing concerns similar products or services supplied by the same person, and the recipient was offered, expressly and unambiguously, a simple way to object free of charge, apart from the cost of sending the refusal, when the details were collected and in each marketing email where they had not refused at the outset.
- In every such message, give valid contact details to which the recipient can send a request that the communications stop, free of charge apart from the cost of sending it.
- Do not conceal the identity of the person on whose behalf the message is sent, and do not state a subject unrelated to the service or product offered.
If you get it wrong
Penalty structure
For a breach of Article L. 34-5 the CNIL's administrative fine may not exceed EUR 10 million or, for an enterprise, 2 % of total worldwide annual turnover for the preceding financial year, and those ceilings may be raised to EUR 20 million or 4 % in certain cases. The consumer authority's fine under the eighth paragraph may not exceed EUR 75,000 for an individual and EUR 375,000 for a legal person. ARCEP's sanction under Article L. 36-11 may not exceed 3 % of turnover before tax for the last financial year, or EUR 150,000 where no activity allows the ceiling to be set, and 5 % or EUR 375,000 for a repeat breach.
- Rule
- Higher of
- As of
- Currency
- EUR
- Fixed cap
- 10,000,000
- Turnover percentage cap
- 2
Who enforces it
Enforcement body
The CNIL, the authority in charge of competition and consumer affairs, and ARCEP, which decision no. 2026-1210 QPC says may each sanction a breach of Article L. 34-5.
Settledness
The three enforcement paragraphs are repealed on unless a new law replaces them earlier.
- As of
- Case link
- https://www.conseil-constitutionnel.fr/decision/2026/20261210QPC.htm
- Case citation
- Conseil constitutionnel, decision no. 2026-1210 QPC of
What this law does
Article L. 34-5 prohibits direct marketing by an automated electronic communications system within the meaning of 6° of Article L. 32, by fax or by email that uses the contact details of an individual, subscriber or user who has not first consented to receive direct marketing by that means. Consent means a free, specific and informed expression of will by which a person accepts that personal data about them be used for direct marketing.
Direct marketing is the sending of any message intended to promote, directly or indirectly, goods, services or the image of a person selling goods or providing services. Calls and messages that invite the user or subscriber to call a premium-rate number or send a premium-rate text message are also direct marketing.
Direct marketing by email is allowed without prior consent if the recipient's details were collected from the recipient, in compliance with the Loi Informatique et Libertés, in connection with a sale or a provision of services, if the marketing concerns similar products or services supplied by the same person, and if the recipient is offered, expressly and unambiguously, a simple way to object free of charge, apart from the cost of sending the refusal, when the details are collected and in each marketing email where the recipient did not refuse at the outset.
In every case it is forbidden to send direct-marketing messages by those means without giving valid contact details to which the recipient can send a request that the communications stop, free of charge apart from the cost of sending it. It is also forbidden to conceal the identity of the person on whose behalf the message is sent or to state a subject unrelated to the service or product offered.
The sixth paragraph has the Commission nationale de l'informatique et des libertés (CNIL) ensure respect of the article for marketing that uses the contact details of a subscriber or an individual.
The eighth paragraph lets the authority in charge of competition and consumer affairs fine a breach up to EUR 75,000 for an individual and EUR 375,000 for a legal person, unless the Autorité de régulation des communications électroniques, des postes et de la distribution de la presse (ARCEP) has already applied Article L. 36-11. In decision no. 2026-1210 QPC the Conseil constitutionnel declared the sixth, eighth and penultimate paragraphs of Article L. 34-5 contrary to the Constitution.
It found that those provisions let three authorities punish the same facts, defined in the same way, with sanctions of the same nature, to protect the same social interests, and so disregard the principle that penalties must be necessary. It postponed the repeal of those paragraphs to .
Until a new law enters into force or the repeal takes effect, it bars an authority from bringing or continuing proceedings under Article L. 34-5 for the same facts against the same person where proceedings are already pending before another authority or the person has already been finally sanctioned by one of them. The provisions this entry describes came into force on different days.
When LexLint raises it
When your app profile says your app sends automated outreach.