Direct marketing purposes
The purpose of direct marketing is to enable or
maintain a direct relationship between a supplier and its customers.
The term ’direct marketing’ does
not include unaddressed door-to-door distribution and
market research. If, however, a bank were to send a data subject a
letter containing offers of new products, specially selected for him,
then this does constitute direct marketing. Calling a data subject
on the telephone during mealtimes in order to offer him a subscription
is also a form of direct marketing.
Conditions governing the use of personal data for direct marketing
purposes
In order to contact a data subject for direct marketing
purposes, his personal data are first of all required.
In many cases, you will already be in possession of such data, as he is
already one of your customers. If that is not the case, you can purchase
or rent data from a third-party organisation.
The Wbp stipulates what is and is not permitted when handling personal
data. The Wbp lays down the rights enjoyed by the data
subject and the duties with which you must comply when contacting (new)
customers with unsolicited advertising material. The Dutch Data Protection
Authority (Dutch DPA) [College bescherming persoonsgegevens (CBP)] is
responsible for supervising compliance with the Wbp.
It is permitted to rent or sell address data if a data subject has
given his consent, or if you have a justified interest
in the use of such data. These are the two main grounds
underlying the trade in addresses and the use of personal data for direct
marketing purposes. Further information about these can be found in the
fact sheet entitled Disclosing
personal data [Verstrekken van persoonsgegevens].
In addition to the Wbp, the Telecommunicatiewet (Tw) [Telecommunications
Act] also plays an important role with regard to certain
types of advertising. The Act contains all regulations
governing the electronic communications sector. This
also includes advertising delivered by telephone or
by e-mail. For example, chapter 11 of the Telecommunicatiewet
includes stipulations regarding the use of the personal
data of subscribers and users by providers of communications
services, amongst other things. The Onafhankelijke
Post en Telecommunicatie Autoriteit (OPTA) [Independent Post and
Telecommunications Authority] and the Dutch DPA both monitor compliance
with chapter 11 of the Tw.
In the study carried out by the Dutch DPA Koning
klant. Het gebruik van klantgegevens voor
marketingdoeleinden [The Client is King. The
use of customer data for marketing purposes], you
can find further information regarding the conditions
under which you are allowed to make use of personal
data for direct marketing purposes. In addition,
the Dutch DPA study, Klant te koop. Privacyregels
voor adressenhandel [Customer for sale. Privacy
regulations governing the trade in private addresses],
contains the conditions governing the rental and
purchase of addresses for the purpose of acquiring
new customers.
Justified interest
Personal data may
only be used if this is necessary in order to look
after your justified interest or that of another organisation
to which you are supplying the data. What this means
is that personal data may be used within the context
of normal business activities or the everyday management
of your organisation. If the purpose of your business
is the trading in addresses, this activity will, in
most cases, fall within the normal business activities
of your organisation. This does not mean, however,
that you are permitted to contact a data subject for
advertising purposes without his or her consent. You
must first of all consider whether your interest in
the use of the data relating to the data subject is
equal to the rights and interests of the data subject,
including the interest of the data subject that his
personal data should not unnecessarily be distributed
and his right not to be harassed by unsolicited advertising
material. Aspects that may play a part when weighing
up the interests of both parties include the data actually
being processed (do they consist only of an individual’s
name, address, postcode and town of residence, or are
further data included?), the relationship of the user
to the customer (is the data subject a regular or an
occasional customer?), how well-informed is the customer
and how easy it is for him to register his objection
to the processing of his data. Chapter 4 of the Dutch
DPA study Koning
klant. Het gebruik van klantgegevens voor marketingdoeleinden [The
Client is King. The use of customer data for marketing
purposes] contains detailed examples of how these interests
are evaluated. You must be able to demonstrate to the
data subject and, if necessary, to the Dutch DPA or
the courts that you have considered the customer’s
interests.
Consent
If you do not have a justified
interest in the use of personal data, you can then
ask the data subject for his unequivocal consent for
his data to be used. ‘Unequivocal’ means
that there must be no doubt as to the specific use
that will be made of an individual’s personal
data and for which the data subject has given his consent.
You are therefore required to inform the data subject
effectively and in advance as to the uses to which
he is giving his consent. A data subject may withdraw
that consent at any time.
Obligation to provide information
Not
only are you obliged to inform the data subject in
all cases that require his consent, but you must also
do so as soon as you have made use of his data. You
must inform the data subject as to: your identity,
the purpose for which you wish to use his data and
what he must do if he is not in agreement with this.
The precise point at which you are required to inform
the data subject depends upon the manner in which you
obtained his data. If you obtained the details from
the customer himself or herself, you are required to
inform him in advance. If you receive the address from
another organisation and use this for advertising purposes,
however, you must always inform the data subject as
soon as you send the unsolicited advertising material.
Further information about the duty of disclosure can
be found in the fact sheet entitled Obligation
to Provide Information [ Informatieplicht].
The right to access to and correction of
one’s data
A data subject has the right
to know what data you hold about him/her, what these
are being used for and from where they were obtained.
If you make use of his data, you must provide him with
a summary of his personal data within four weeks of his
request to view the data. You are also required to state
the purpose for which the data are being used, who has
received the data and from where the data have been taken.
In return for providing this information, you are entitled
to make a charge not exceeding € €0.23 per
page, up to a maximum of € €4.50. Further information
about the right to view personal data can be found
in the fact sheet entitled Providing
access to personal data [Het geven van inzage in persoonsgegevens].
A data subject is also entitled to request that data
be corrected. This means that he may ask you to correct,
supplement, erase or block his personal data. Data
may only be corrected if they are incorrect, incomplete
or not relevant for the purpose for which they are
being used. Further information about the right to
correct data can be found in the fact sheet entitled
The Correction
of Personal Data [Het bieden van correctie].
The
right to object
As trading in addresses and
the use of personal data for direct marketing purposes
is, in many cases, permitted, the Wbp also grants data
subjects the right to lodge their objection. Invoking
this right enables a data subject to prevent his personal
data from being sold or rented out. He may also avail
himself of this entitlement in order to prevent telemarketing
and direct mail.
How can a data subject lodge his objection?
If a data
subject lodges his objection to direct marketing, he
is not required to inform you as to the reason for
his objection. You are obliged to comply with his objection
in all cases and are not entitled to demand a fee to
do this. This means that you must provide data subjects
with an opportunity to tick a box, write to a freepost
address and/or call an 0800 telephone number in order
to lodge his objection. This way, a data subject is
not required to pay any postage or telephone charges.
It is advisable to make use of written requests. If
an individual lodges his objection, you may decide
to mark his data or to include them in a non-mailing
list. In the event that you do not respond to his request
or do not provide a satisfactory response, a data subject
may ask the Dutch DPA to act as an intermediary. Further
information about this can be found in the fact sheet
Mediation
by the Dutch DPA in respect of your Data Processing [
Bemiddeling door het College bescherming persoonsgegevens
inzake uw verwerkingen].
What can a data subject object to?
When a data subject
lodges his objection, it does not always mean that
you are no longer permitted to make any use of his
data. The only restriction that then applies is that
the data no longer may be used for direct marketing
purposes. If, for example, a subscriber to a weekly
magazine lodges an objection, the publisher of the
magazine is still entitled to make use of his data
in order to send the magazine to the subscriber and
to charge the applicable subscription charge. The publisher
is no longer permitted to send the subscriber any offers
or to sell or rent out his data.
How should you inform a data subject of his right
to object?
You are obliged to inform a data subject of
his right to object:
- In every advertising message. You can do this,
for example, by providing a freepost address, an
0800 telephone number or an e-mail address, to which
the data subject can send a message lodging his objection.
- By means of a general announcement, in the event
that you are supplying personal data that you have
obtained yourself to a third-party organisation or
in the event that you are making use of personal
data on behalf of third-party organisations. A general
announcement is understood to involve the placing
of an advertisement in a newspaper, newsletter or
door-to-door newspaper. When data are being supplied
to others on a regular basis, you are obliged to
notify data subjects of their right to object at
least once a year.
Types of advertising
There are a number
of channels that you may use in order to contact a
data subject:
- Door-to-door advertising
This takes the form of
leaflets that are placed in individuals' letter boxes.
They are not addressed to an individual data subject,
as the leaflets involved do not carry his name or
address. Neither the Wbp nor the Two, which contains
a description of the rights and duties that apply
in the case of door-to-door advertising. The Reclame
Code Commissie [Dutch Advertising Code Authority]
has drawn up the Code brievenbusreclame, huissampling
en direct response advertising [Code for door-to-door
advertising, home sampling and direct response advertising]
and the Code verspreiding ongeadresseerde reclamedrukwerk
[Code for the Distribution of unaddressed advertising
material]. These codes contain rules and regulations
governing the content of advertising and its distribution.
- Addressed
advertising material
This too takes the form of leaflets
that arrive via the letterbox, but they are addressed
specifically to the individual data subject involved,
in that his name and/or address is included. Advertising
material that is addressed to the recipient is also
known as direct mail. This type of advertising is subject
to the Wbp, but not to the Tw. In addition, the Reclame
Code Commissie has
also drawn up the Code brievenbusreclame, huissampling
en direct response advertising [Code for door-to-door
advertising, home sampling and direct response advertising].
This code contains rules and regulations governing
the content of advertising and its distribution.
- Telephone
This involves
a data subject being contacted via his landline or
mobile telephone number. Contacting individuals by
telephone for advertising purposes is also known
as telemarketing. No consent is required for this
type of advertising, unless the data subject has
indicated in advance that he does not wish to be
contacted. You are, however, obliged actively to
inform the data subject during each telephone conversation
that he is entitled to lodge an objection. Telemarketing
is subject both to the Wbp, as well as to the Tw. Telemarketing
is also required to comply with the Code Telemarketing
[Telemarketing Code], which is managed by the Reclame
Code Commissie.
- Fax,
e-mail, MMS and SMS
This type of advertising involves
the data subject being contacted by fax, e-mail,
MMS or SMS. Unsolicited contact by e-mail or mobile
telephone (SMS or MMS) is also known as spam. Spam
also includes calling or faxing using an automatic
calling system, i.e. that an individual is called
by a computer. An automatic call made by internet
telephony is also known as spit. The sending of spam
or spit is forbidden, in accordance with the Tw,
unless a data subject has given consent to this or
he is, or once was, one of your customers. In the
latter instance, the advertising in question must
be for similar products or services. You are, however,
obliged to inform him that he is entitled to lodge
an objection. The Reclame Code Commissie has drawn
up the Code Verspreiding Reclame via e-mail [Code
for the Distribution of Advertising by e-mail]. The
code contains rules and regulations governing the
sending of advertising messages by e-mail, which,
amongst other things, impose limits on the size and
extent of the e-mail.
The fact sheet The
Combating of Unsolicited Advertising [Tegengaan
ongevraagde reclame] contains a description of the
steps that the data subject can take to prevent him
from receiving the various types of unsolicited advertising
material.
Infofilter
Infofilter is an initiative of the Stichting Zelfregulering
DM [Trade organisation of direct marketeers]. Infofilter
takes the form of a central reporting point at which
consumers can lodge their objection to the use of their
data for direct marketing purposes (for information,
see www.infofilter.nl). In principle, it is possible
to distinguish between two situations in which the
use of Infofilter is required, namely when using databases
in order to acquire new customers and when using customer
databases for cross-selling and upselling activities
(selling more to existing customers).
If you are a member
of the trade organisations Dutch Dialogue Marketing
Association (DDMA), Nederlandse Thuiswinkel Organisatie
(NTO) [Dutch Home-shopping Organisation], MarktOnderzoekAssociatie
(MOA) [Market Research Association] and the Werkgeversorganisatie
Callcenters (WGCC) [Callcenter Employers’ Organisation],
you are obliged to make use of Infofilter in the situations
described above.
Mr. Heemskerk, the State Secretary
for Economic Affairs announced in July 2007 that he
wishes to convert the Infofilter into a legally obligatory ‘don’t
call me’ register. His plan is for this measure
to take effect at the beginning of 2008. When the time
comes, the Dutch DPA will amend this fact sheet.
If
the data subject has questions or complaints
If
he has questions or complaints, the data subject should
contact you in the first instance. In the event that
you are unable to resolve the issue between yourselves,
the data subject is entitled to submit his questions
or complaints to the Dutch DPA. Information regarding
the way in which the Dutch DPA handles the complaint
can be found in the fact sheet Complaints
Handling by the Dutch DPA [ Klachtenbehandeling door het
CBP].
Other rights of the data subjec
A
data subject may also lodge his objection as a result
of his specific personal circumstances. This is only
possible, however, in a limited number of cases. Further
details of this type of objection can be found in the
fact sheet Data Subjects
and their Rights [
Rechten van de betrokkene].