Data Protection Commissioner
Data Protection Commissioner

Electronic Mail

 

For individual subscribers:

 

Electronic mail (i.e. a text message, voice message, sound message, image message, multimedia message or email message) for the purpose of direct marketing cannot be sent to you without your prior consent unless it is from someone with whom you have a current customer relationship. The Data Protection Commissioner considers that, in order to comply with the provision of the Data Protection Acts concerning the retention of data for no longer than is necessary, and in line with best practice, a 'current customer relationship' exists only where a business and a customer have engaged in a business transaction within the previous twelve months. The rules for direct marketing using electronic mail are simple:

 

Marketers may send you electronic mail for direct marketing purposes where:

 

(i)

  • You have given them explicit consent to do so within the last twelve months, or

(ii)

  • they have obtained your personal contact details in the course of a sale to you of a product or service within the last twelve months, they informed you of their identity, the purpose in collecting your contact details, the persons or categories of persons to whom your personal data may be disclosed and any other information which is necessary so that processing may be fair, and
  • the direct marketing they are sending is in respect of their similar* products and services only, and
  • you were given a simple cost-free means of refusing the use of your contact details for direct marketing purposes at the time your details were initially collected, and where you did not initially refuse the use of those details, you are given a similar option at the time of each subsequent communication. (If you fail to unsubscribe using the cost-free means provided to you by the direct marketer, you will be deemed to have remained opted-in to the receipt of such electronic mail for a twelve month period from the date of issue to you of the most recent marketing electronic mail).  

 

Marketers may not send you any electronic mail for direct marketing purposes in the following circumstances:

  • if you have not given your prior consent to receiving such mail within the last twelve months in accordance with the options set out above,
  • if the identity of the sender has been disguised or concealed or a valid address to which you can send an opt-out request has not been provided, and additionally, where the electronic mail is an email communication, a valid address at which the sender may be contacted has not been provided. 
  • if you have joined a club to which you pay a subscription for text, multimedia or email message services, unless the direct marketing is directly related to a similar* product or service to the subscription club of which you are a member,

If you are receiving electronic marketing messages contrary to these rules, you may complain to the Data Protection Commissioner.


For Persons Engaged in Direct Marketing Activity:

 

Electronic mail (i.e. a text message, voice message, sound message, image message, multimedia message or email message) for the purpose of direct marketing cannot be sent by you to an individual subscriber without their prior consent unless it is to a subscriber with whom you have a current customer relationship. The Data Protection Commissioner considers that, in order to comply with the provision of the Data Protection Acts concerning the retention of data for no longer than is necessary, and in line with best practice, a 'current customer relationship' exists only where a business and a customer have engaged in a business transaction within the previous twelve months. The rules for direct marketing using electronic mail are simple:

 

Marketers may send electronic mail (i.e. a text message, multimedia message or email message) for direct marketing purposes to an individual subscriber where:

 

(i)

  • the subscriber has unambiguously opted-in to receive such mail within the last twelve months, or

(ii)

  • they have obtained that subscriber's contact details in the course of a sale of a product or service to him/her within the last twelve months, they informed the subscriber of their identity, the purpose in collecting his/her contact details, the persons or categories of persons to whom his/her personal data may be disclosed and any other information which is necessary so that processing may be fair, and
  • the direct marketing material they are sending is in respect of their similar* products and services only and
  • the subscriber was given a simple, cost-free means of refusing the use of his/her contact details for marketing purposes at the time those details were initially collected and, where the subscriber did not initially refuse the use of those details, they are given a similar option at the time of each subsequent communication. (If the subscriber fails to unsubscribe using the cost-free means provided to them by the direct marketer, they will be deemed to have remained opted-in to the receipt of such electronic mail for a twelve month period from the date of issue to them of the most recent marketing electronic mail).  
     

Marketers may not send electronic mail for direct marketing purposes to an individual subscriber in the following circumstances:

  • if the subscriber has not opted-in to receive the electronic mail within the last twelve months in accordance with the options set out above,
  • if the identity of the sender has been disguised or concealed or a valid address to which the subscriber can send an opt-out request has not been provided, and additionally, where the electronic mail is an email communication, a valid address at which the sender may be contacted has not been provided. 
  • if the subscriber has joined a club to which he/she pays a subscription for text or multimedia message services, unless the direct marketing material is directly related to a similar* product or service to the subscription club of which that subscriber is a member.

Failure by persons engaged in direct marketing activity to comply with these rules is an offence and summary proceedings may be brought and prosecuted by the Data Protection Commissioner. The sending of each unsolicited communication constitutes a separate offence.  

 

*Similar: is defined in the Oxford English Dictionary as like, alike, of the same kind, nature or amount, having a resemblance.

 

The Data Protection Commissioner expects persons engaged in direct marketing activity to pay close attention to the limitations which this definition sets down. It is the Commissioner's view that the term 'similar products' referred to above is strictly limited and that direct marketing undertaken on that basis must not breach those parameters.    
 

You should note that the Commissioner has no role to play in situations where you sign up to a service (such as ring tones, jokes or games) and later have difficulty in unsubscribing. In those cases, where a premium rate telephone number is involved, the Regulator of Premium Rate Telecommunications Services (RegTel) may be of assistance. His contact details are

 

RegTel

3rd Floor

Crescent Hall

Mount Street Crescent

Dublin 2

Phone: 01-6767025

Fax: 01-6767035

E-mail: info@regtel.ie

 

How to complain

A complaint about unsolicited direct marketing can be made ONLINE, in writing or via e-mail to

 

Data Protection Commissioner

Canal House,

Station Road,

Portarlington<

Co. Laois

Phone: 1890 252231

Fax: 057 8684757

E-mail: info@dataprotection.ie

 

When making a complaint, you should provide as much information as possible, including your own contact details; time and date of the message; a copy of the message if possible, or a summary of contents if not; information about any previous dealing with the sender of the message as well as a statement that you are making a formal complaint. Additionally, if the Commissioner decides to prosecute an offender, you may be asked to give a sworn statement or to appear in Court to give evidence.

 

Advice on how to protect yourself

Some of the information used to market you is in the public domain, such as the telephone directory or the Electoral Register. However, as stated above, you can still control how that information is used by marketers by having a marketing preference recorded by the bodies compiling such public databases.

 

In other situations, marketers generally do not obtain your details unless you have either directly given them your contact details or have supplied contact details in the context of entering a competition, a promotion or some form of lifestyle survey. If you are supplying contact details in these circumstances, read the conditions of entry carefully in order to understand how your contact details may be used. If the conditions state that your details may be used for marketing, or passed onto third parties to use for marketing, you must judge whether entering the competition is worth it. Even where you do supply contact details, you can always change your mind at a later date and inform that organisation that you do not want to receive marketing. However, this may be of little value when the organisation has already passed your details to third parties.

 

In general, when you are asked for your contact details, you should ask why they are needed. If you are not satisfied with the reasons offered, or do not trust the organisation, you must judge whether you want to risk volunteering information.

 

Be careful when supplying details on a public space such as a website forum. Details may be viewed by people without your knowledge and used without your consent. Similarly, be careful if you have a website and are placing contact details on it. Such details are commonly harvested by unscrupulous marketers.

 

By being careful about how you supply your contact details, you can do an awful lot to limit the use of such data by spammers.

 

If you own a mobile phone, be careful who else you let use it. It has been known for "friends" to subscribe each other to various services. The same applies to use of your e-mail account.

 

Further Information

This guide only contains brief details on dealing with unwanted direct marketing.

 

More detailed information on how to prevent colds calls may be found on the Comreg Consumer Website. The Commission for Communication Regulation (ComReg) also has responsibility in relation to the regulations on unsolicited electronic marketing.

 

Comreg's contact details are:

 

ConsumerLine,

Commission for Communications Regulation,

FREEPOST,

Block DEF, Abbey Court,

Irish Life Centre,

Lower Abbey Street,

Dublin 1.

Telephone - + 353 1 8049668 or LoCall 1890 22 9668.

Fax - + 353 1 804 9671

E-mail: consumerline@comreg.ie