Digital marketing is a key part of the marketing strategy for many companies, so it's crucial to be aware of the Danish Marketing Practices Act's ban on spam, which today extends far beyond consent requirements for email marketing.
Violating the spam ban can damage both customer satisfaction and reputation, and companies risk fines based on the number of illegal spam requests.
It is therefore important to know how to avoid violating the spam ban when your company sends out direct marketing.
What is spam?
Spam is categorized as unsolicited direct communications sent via electronic mail for marketing purposes where the recipient has not given prior consent to the communication.
The prohibition of spam follows from section 10 of the Danish Marketing Practices Act, which reads as follows:
"A trader shall not contact any person by electronic mail, automated calling system or fax for the purpose of direct marketing unless that person has given his prior consent. Before giving consent, the person concerned must be informed that consent can be withdrawn. The trader shall provide the possibility to withdraw consent easily and free of charge."
A message is therefore spam if the following criteria are met:
All types of businesses are generally covered, regardless of size or industry. For example, this also applies to private individuals who send out inquiries about a business activity.
Marketing sent with consumers or private individuals as intermediaries is therefore also covered by the ban on spam. This is the case, for example, if you use influencers, "friend solicitation", "tip a friend" or require users to tag other users to participate in a competition on social media.
Read also our article: Requirement to tag others in social media contests is illegal
The decisive factor for whether marketing through consumers is covered by the spam ban will ultimately be assessed based on whether the company encourages the user to market for them.
Generally speaking, a company's communication will be covered by the spam ban if the purpose of the marketing is to sell products or brand the company.
Mention of the company, products, discounts, campaigns, newsletters, competitions and the like are thus categorized as marketing. Similarly, communications that in any other way encourage trade will constitute marketing. This is the case, for example, when using a function on a webshop, after which the customer receives a notification that their shopping cart will soon expire or a message stating that "it's been a long time since you last shopped with us".
However, if it is a genuine service message, the message is not marketing and therefore not covered by the ban on spam. However, it is important to be aware of whether the message contains marketing or branding. A message that contains both a service message (e.g. regarding an update of terms and conditions) and marketing (e.g. sign up for our customer club and earn discounts) will be covered by the spam ban.
A communication in which the company asks the recipient for consent to marketing will in itself constitute marketing and is therefore also covered by the ban on spam.
The term "electronic mail" includes, among other things, emails, text messages, digital mail, push messages, notifications, social media tags and private messages on social media. A message is covered by the term regardless of whether it consists of text, audio, voice, video or image.
Bluetooth marketing does not constitute electronic mail, but its use as part of marketing would probably be in violation of good marketing practice.
The spam ban does not apply to physical marketing material, but traders are obliged to check whether the recipient has opted out of marketing, i.e:
- If the recipient is a consumer: To check if the recipient is registered on the Robinson list and inform about the right to opt-out of marketing, and
- If the recipient is a business: To check the CVR register for advertising protection.
If your message meets the above criteria, it is generally spam unless the recipients have given valid consent prior to receiving the message.
In this context, it is important to note that it is irrelevant whether the recipient is a consumer, a company, a public authority, an employee or a main mailbox
Requirements for consent
The spam ban protects the recipient from receiving direct electronic marketing that they have not consented to. A valid consent is therefore essential when the company must ensure that marketing messages to consumers and businesses etc. meet the requirements of Section 10 of the Danish Marketing Practices Act.
The prerequisites for a consent to be valid and thus legal are that the following requirements are met:
Consent must be given prior to receiving marketing communications. This requirement also means that, as a rule, you cannot send an electronic message asking for consent, as the act of obtaining consent in itself constitutes spam.
The recipient must not feel pressured to give consent, and consent to marketing must not be a prerequisite for the recipient to obtain another benefit, service or similar. For example, the purchase of a product must not be conditional on the customer agreeing to receive marketing.
However, under certain conditions, it is allowed to motivate consent to marketing, for example with a competition or similar.
The recipient must know exactly what consent is being given for. For example, it must be clear which companies want to send marketing and what type of marketing it is.
In addition, information on how to withdraw consent should always be provided.
Also, when giving consent, remember to refer to a privacy policy where the recipient can find information about how their personal data is processed.
The fact that the consent must be specific means that the consent cannot be used for marketing other than that intended. At the same time, it is not sufficiently specific to obtain a generally worded consent to "receive marketing".
However, if it is common knowledge which products the company sells, the company can only obtain consent for marketing within the company's product categories.
However, this also means that the company cannot market products from a completely different product category if this is not part of the consent.
This requirement means that a consent checkbox must not be pre-ticked, as the recipient must actively choose to give consent to the marketing.
Marketing consent must also be separate from other consents. For example, accepting terms and conditions and receiving marketing in the same field raises doubts as to whether the recipient actually wants to accept both rather than just the terms and conditions.
At the latest when a recipient gives consent, they must be informed that consent can be withdrawn.
It is a requirement that the withdrawal option must be stated in the text of the consent and that the withdrawal of consent can be done through the same media as the marketing comes from.
This means that if marketing is sent by email, it must be possible to withdraw consent by email.
A company must also be able to document that it has obtained valid consent. This means that the company must be able to document to the recipient of an inquiry that the person in question has given consent and that the consent meets the legal requirements.
It is also important to be aware that consent lapses if it is not used.
This would be the case, for example, if you obtain consent to send out a newsletter but do not send a newsletter until 1 year has passed.
It depends on a specific assessment how long you can remain passive without consent lapsing, but the rule of thumb is that consent lapses after a passive period of 1 year.
Exceptions to the spam ban and consent requirement
There are a few exceptions to the spam ban where it is not necessary to obtain consent from the recipient.
Inquiries with the sole purpose of informing about contractual matters, new features or changes in terms and conditions are not considered marketing and therefore do not require consent from the recipient.
However, such service messages may not contain elements of advertising for new products or services or branding of the company, as this is considered marketing that triggers consent requirements.
For example, a company sends out emails to car buyers about a new feature. If the new feature is simply added to the car's software, it would be a service message. If the feature requires the purchase of a new product, it would be marketing.
Under certain conditions, it is permitted to send marketing to a former customer without prior consent:
- The customer has purchased a product and provided their electronic address.
- The customer has been clearly and unambiguously informed that he or she will receive marketing of similar products.
- The customer has been informed about the possibility to opt out of marketing and is subsequently informed about this on an ongoing basis in connection with each individual inquiry.
- The inquiry relates to the company's own products similar to those previously purchased by the customer. For example, if a company has sold a car, the company can subsequently send offers for oil for the car, but not for other types of vehicles.
It is important to be aware that all of the above requirements must be metbefore the exception can be applied, and that in practice the applicability of this exception is very limited.
In addition, it is permitted to approach a former customer to ask them to review a specific purchase experience on a rating portal such as Trustpilot without prior consent from the customer.
However, this requires that a product has been sold in connection with the inquiry and that the inquiry is a follow-up. This means that it must not take too long before the inquiry is directed to the recipient.
Market research that aims to investigate specific market conditions is also not marketing covered by the spam ban.
However, if the survey is (partly) aimed at selling products or branding the company, it will be considered marketing. This also includes branding in any email linking to the survey or a website where the survey must be answered.
However, the company may include a neutral logo or signature so that the recipient can confirm the identity of the company.
Consequences for violating the spam ban
Violating the spam ban is subject to fines, but in practice it's just as important to be aware that disregarding spam rules can damage a company's reputation.
The Danish Marketing Practices Act states that violation of the spam ban can be punished with a fine. The size of the fine is determined based on the extent and seriousness of the violation. According to the Consumer Ombudsman's guidelines and practice, the fine level is set based on a minimum amount of DKK 20,000 - 50,000 for the sending of up to 100 spam messages and an additional supplement of DKK 200 per spam message if more than 100 spam messages are sent.
If one newsletter is sent to 30 recipients in violation of the spam ban, the fine will generally be set at DKK 20,000.
If the newsletter is sent to 31-50 recipients, the fine is generally set at DKK 30,000.
For more than 50 recipients, the fine is set at DKK 50,000.
If the company has sent more than 100 messages, the fine is set at DKK 50,000 and DKK 200 per spam message that exceeds 100 messages. This means that sending 150 messages in violation of the spam ban will generally be fined DKK 60,000.
However, a fine can be adjusted both upwards and downwards if special circumstances apply.
Violating the spam ban can not only result in financial penalties in the form of fines, but can also have serious consequences for your company's reputation and customer satisfaction.
Your company's advertising, inquiries and communication with customers, partners, leads, etc. are often a cornerstone of trust in your company.
Negative reviews and public criticism can make new customers hesitant to engage with the company, and existing customers may choose to switch to competitors who are more respectful of their privacy and communicate in an ethical and legal manner.
Practical guidelines for complying with the spam ban
When working with digital marketing, it is first and foremost important that you know which of your company's marketing activities are covered by the spam ban. Once you have this overview, you should consider the following for each activity:
Review all emails, texts and other electronic messages to ensure they are compliant and that consent has been given for marketing content.
Create a clear and easy-to-use internal process for obtaining, documenting and keeping track of consents.
Make sure to keep the consent database updated and delete consents that are inactive or revoked.
Make sure relevant employees are familiar with the spam ban, good marketing practices and your guidelines on how your company's marketing activities are legal.
At CLEMENS, we're always ready to help you navigate the complexities of marketing regulations, including compliance with the spam ban.
If you have any questions about the spam ban or marketing legislation in general, or if you need help with a case with the Consumer Ombudsman, you are always welcome to reach out to our marketing law team.
