Online Marketing in Spain
In Spain, the consumer must have given his or her prior consent for a retailer to contact the consumer by email. Consumers maintain the right to object to being contacted, and businesses must provide a free, clear opt-out option on every email. Businesses must also ensure that they are clearly identifiable in any commercial communications with consumers.
All of the other listed countries (Germany, Switzerland, England, France, Poland and Austria) also have an opt-in option, or the consumer has to have given his or her prior permission for the business to contact the consumer. In Germany and Switzerland, businesses must secure consent by a double opt-in mechanism. There is no current, specific case law about the circumstances in which a business can address consumers without explicit consent in France, England, and Austria. In England, businesses must act in the best interest of consumers and ensure compliance with the Data Protection Act and the Privacy and Electronic Communications Regulations.
The Tell-a-Friend Function is technically illegal in Spain, although there are ways in which to implement it such as ensuring that the consumer’s personal data is not stored when sending the email. In Germany, it is possible to use this function when the sending individual and not the advertised company is displayed as the sender of the email. This function is legal in Switzerland because there is not a mass of recipients, whereas it is illegal in Poland where there are no exceptions from the strict opt-in policy. In England, the Information Commissioner advises against this type of marketing.
In Spain, advertising in emails is legal as long as the company is easily identifiable and the details of any transactions are clear. Advertising in emails is also legal in Germany, Switzerland, France, and Austria but with some restrictions. German Law states that the consumer must have given clear consent for use of his or her details for marketing purposes. This concept also applies in France, but the recipient also retains the right to simply and freely object to use of his or her email address. In England, this type of advertising risks breaching the Data Protection Act or the Privacy and Electronic Communications Regulations unless the consumer has given consent. Again, in Poland, there are no exceptions to the opt-in policy.
According to Spanish Law, it is legal to contact existing customers if the retailer has lawfully obtained the contact details of the recipient and the commercial communications that they send relate to products or services of their own business that are similar to those that were initially contracted by the client. Generally, in all of the listed countries, contacting existing customers is also legal as long as the consumers’ information was obtained through a prior purchase/business contract and the seller adheres to certain conditions.
Spanish, German, Swiss, French, and Austrian Law provide that it is legal to use a competitor’s trademark as a keyword in Google AdWords because advertisements are clearly marked. However, in Spain, it is not legal to use the brand of the competitor in the advertisement.
Regarding the Cookie Directive, Spanish Law stipulates two different methods of obtaining valid consent from an internet user to allow the service provider to use cookies. The first method is an opt-in method where the user has access to comprehensive information on cookies, and the second is consent expressed through the settings of a browser or application where possible. Previously, Spanish Law required an opt-out option. The Cookie Directive has also been implemented in England, France, Poland, and Austria.
