ePrivacy: Direct Marketing Rules
Direct Marketing Rules [Art 13]
Rule: Electronic marketing (email, SMS, automated calls) requires prior opt-in consent, with a “soft opt-in” exception for existing customers.
The Basic Rule: Opt-In Required [Art 13(1)]
The use of automated calling and communication systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may be allowed only in respect of subscribers or users who have given their prior consent.
Soft Opt-In Exception [Art 13(2)]
You may send marketing emails WITHOUT prior consent if ALL conditions are met:
- Existing customer relationship — You obtained the email in the context of a sale
- Similar products/services — Marketing your own similar products only
- Clear opt-out at collection — Customer was given opportunity to object when email was collected
- Easy opt-out in every message — Free and easy unsubscribe in each communication
What Counts as Direct Marketing?
| Included | Not Included |
|---|---|
| Promotional emails | Transactional emails (order confirmations) |
| SMS marketing | Service messages (password resets) |
| Automated calls | Customer service calls |
| Fax marketing | Relationship surveys (debatable) |
| Push notifications (marketing) | Administrative notifications |
B2B vs B2C
The Directive allows Member States to choose whether Art 13 applies to:
- Legal persons (B2B) — Some countries (UK, Germany) allow opt-out model for B2B
- Natural persons (B2C) — Always opt-in required
Check national implementation for B2B rules.
Requirements for All Marketing
Regardless of consent basis:
- Identity must be clear — Sender identity not concealed or disguised
- Valid return address — Must provide address for opt-out requests
- Opt-out honored — Must respect unsubscribe requests
Penalties
Enforcement is at national level. Examples:
- France: Up to €75,000 per violation
- Spain: Up to €150,000
- Germany: Up to €300,000
Comparison with CAN-SPAM (US)
| Aspect | ePrivacy (EU) | CAN-SPAM (US) |
|---|---|---|
| Default model | Opt-in | Opt-out |
| Prior consent | Required | Not required |
| Soft opt-in | Yes, for existing customers | N/A (always allowed) |
| B2B | Varies by country | Same as B2C |
Citation
Article 13, ePrivacy Directive