Answers to the questions that arise most often, with the article cited alongside wherever the answer follows from a rule.
Questions and answers
Does the law distinguish between calling and emailing?
No. Article 13 of Directive 2002/58/EC sets a single regime for unsolicited communications for direct marketing purposes, and the national transpositions follow it. What varies between Member States is not the channel but the choice the Directive expressly left to national law in article 13(3): whether communications not covered by paragraphs 1 and 2 require consent or merely the absence of objection. In Portugal, the criterion is the recipient: prior express consent for natural persons, opt-out for legal persons, whatever the channel.
Article 13 of Directive 2002/58/EC
Can we market to our own customers without consent?
Within defined limits, yes. Article 13(2) of Directive 2002/58/EC allows a provider to use electronic contact details obtained from its customers for direct marketing, but imposes four cumulative conditions: the details were obtained from the customers themselves; in the context of the sale of a product or service; the marketing concerns the provider’s own and similar products or services; and the customer was given a free and easy means of objecting, both at the point of collection and in every message. If one condition fails, the exception falls away and consent is required again.
Article 13(2) of Directive 2002/58/EC
What happens when someone objects to direct marketing?
Processing for that purpose stops, immediately and without any balancing of interests. Article 21(2) of Regulation (EU) 2016/679 gives the data subject the right to object at any time to processing for direct marketing purposes, including profiling related to it, and article 21(3) provides that the data shall no longer be processed for those purposes. Unlike the general right of objection in article 21(1), no reasons need be given and no compelling legitimate grounds can override it.
Article 21(2) and (3) of Regulation (EU) 2016/679
Our customer service is outsourced. Who is responsible?
The undertaking that offers the service to the consumer. Outsourcing distributes execution, not liability to the consumer, without prejudice to any allocation of liability agreed between the parties. Where personal data is processed, the outsourcing provider is generally a processor and a contract under article 28 of the General Data Protection Regulation is required.
Article 28 of Regulation (EU) 2016/679
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