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Legislation on SPAM Paul Van den Bulck

Legislation on SPAM Paul Van den Bulck. Lawyer at the Brussels Bar Lecturer at the University of Strasbourg Assistant at the University of Brussels. Brussels 23 March 2004. WWW.ULYS.NET paul.vandenbulck@ulys.net.

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Legislation on SPAM Paul Van den Bulck

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  1. Legislation on SPAM Paul Van den Bulck Lawyer at the Brussels Bar Lecturer at the University of Strasbourg Assistant at the University of Brussels Brussels 23 March 2004 WWW.ULYS.NET paul.vandenbulck@ulys.net Law of : • New Technologies•Intellectual Property•Media and Entertainment•Commercial Law•

  2. Can I send emails to all persons listed in my database? Introduction and overview • Information of EIC is delivered in various ways, including email • Regulatory Framework for « communications » • Directive 2000/31 on electronic commerce • Directive 2002/58 on privacy and electronic communications

  3. Concept of commercial communications “any form of communication designed to promote, directly or indirectly,the goods, services or image of person pursuing a commercial, industrial or craft activity” Legal regime: Article 6: Information to be provided : The commercial communication must be identified as such; The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable Article 7: Unsolicited commercial communication – SPAM Spam must be identified in a clear and unambiguous way, this from the moment of reception on Service providers must respect opt-out registers Article 16: Codes of Conduct or other self-regulatory instruments 1. Electronic commerce Directive

  4. 2. Directive 2002/58/EC on privacy and electronic communications • Concept of communication : « any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service » • Unsolicited communications - SPAM(article 13) • General principle: Opt-in regime : natural persons! • subscribers must give their prior and explicit consent, IF • Direct marketing • Electronic mail: • « any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient's terminal equipment until it is collected by the recipient ». paul.vandenbulck@ulys.net Opt-in covers more than ‘emails’ also SMS, MMS. Pop up?

  5. 2. Directive 2002/58/EC on privacy and electronic communications • Exception : opt-out under 4 conditions (i) existing commercial relationship; (ii) same natural or legal person; (iii) similar products or services; and (iv) consumer is given the opportunity to refuse reception • Open issues: • Valid consent? • Prior, explicit & informed consent of the recipients • How to obtain valid consent?

  6. & QUESTIONS cOMMENTS WWW.ULYS.NET paul.vandenbulck@ulys.net

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