By Massimiliano Pappalardo
On July 27, by means of a quite detailed list of Dos and Don’ts, summed up in the telling title of the relevant press release, NO to Spam, YES to Consumer-"Friendly" Marketing, the Italian data protection authority (DPA), the Garante, fixed a number of disputed issues concerning direct marketing—paying special attention to the new frontiers of marketing, including spamming performed via social network platforms (SNS), viral marketing and targeted marketing.
By collecting and coordinating a number of principles behind past decisions regarding specific cases or particular industries, the Garante issued a consolidated set of rules, valid for and applicable to any entity planning a direct-marketing campaign in Italy.
Regardless of any consideration in the merit of the opportunity of the strict direct marketing rules still existing in Italy, in comparison with other countries, such guidelines should be welcomed by privacy operators and may prove to be helpful in order to cope with a number of issues until today falling in a grey area.
It’s no surprise that in Italy, in principle, promotional offers require the prior consent of the recipient, and such a consent must be specific, free, informed and recorded in writing. More interesting is the data protection authority’s (DPA) clarification— remarked in a general decision on “Consent to the data processing for direct marketing purposes by means of traditional and automated systems,” published in July—that a unique consent can be held acceptable for different direct marketing activities carried out by means of different platforms, as long as:
- The recipients have been duly informed of the fact that commercial communications may be sent also by means of automated systems, e.g. pre-recorded calls, emails, faxes, SMS or MMS, and
- The chance to opt out in an easy way with regard to direct marketing via automated systems will be granted to the recipients.
In addition, specific and separate consents shall have to be required to the recipients for profiling purposes and in order to transfer personal data to third parties for their own marketing activities. In this respect, the DPA clarified that companies belonging to the same group—also at a multinational level—shall have to be considered as third parties and therefore a data transfer for direct marketing purposes, also within the same group, will need a specific and further consent.
An exception to the consent principle is provided for with regard to the e-mail marketing: No consent will be needed to e-mail promotional messages to its own customers regarding goods or services that are similar to those they have already purchase—the so-called "soft spam”—but, also in this case, the right to opt out shall be granted.
Provided that a number of measures set forth in the Italian Data Protection Code are enforceable solely by individuals but not by legal entities, the DPA clarified that company e-mail accounts, including the first name, or the initial letter of the first name, and the surname of an employee shall have to be considered as personal accounts and, as a consequence, any breach can be reported by the single employees.
Special attention deserves to be given to the specific provisions of the DPA about marketing practices arising from the pervasive use of social media: In principle, the recipients' specific consent is needed before sending promotional messages to users of Facebook, Twitter and other SNS, e.g., by posting such messages on the users' virtual billboards or to users of other messaging and VoIP services.
According to the DPA’s guidelines, the fact that personal data happens to be available on the Internet does not mean that it may be used freely to send automated promotional messages or for any other "viral" or "targeted" marketing purposes.
In any case, the Garante clarified that so-called "grapevine marketing” does not require a prior consent of the recipient. Indeed, consent is not needed for e-mailing or texting promotional offers to friends, as far as such promotional offers are forwarded by SNS users in a personal capacity and not for business purposes.
In addition, companies and firms may send promotional messages to their "followers" on SNS, as far as the latters have clearly stated when signing in to the company's page that they are interested in or give their consent to receiving such promotional messages on a given brand, product or service.
Maybe such guidelines will not make life easier for marketers, but at least they can be of help in order to better understand the legal boundaries they shall have to cope with.
Massimiliano Pappalardo is founding partner of D&P—Legal Support for Ideas. He is a lawyer admitted to the Italian Bar, Court of Appeal of Milan, with expertise in intellectual property, new technologies and data protection law. In such areas of practice, Pappalardo advises on a regular basis in favor of national and international companies. He is also the IAPP’s Italy KnowledgeNet Chair.