Contributed By Vondst Advocaten N V
Based on recital (47) of the GDPR, the processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. Direct marketing generally refers to any form of advertising by which a natural or legal person sends direct marketing communications directly to one or more identified or identifiable end users using electronic communications services. In addition to the offering of products and services for commercial purposes, this also includes messages sent by political parties and other non-profit organisations to support the purpose of the organisation.
Where personal data are processed for the purposes of direct marketing, the data subject should have the right to object to such processing, including profiling to the extent that it is related to such direct marketing, whether with regard to initial or further processing, at any time and free of charge. That right should be explicitly brought to the attention of the data subject and presented clearly and separately from any other information.
General rules for direct marketing may be found in the GDPR. The data subject has a right to object to the processing of his or her personal data for direct marketing purposes, without any justification being necessary. Furthermore, the data subject must be informed of his or her right to object to any direct marketing communication.
The Dutch Telecommunications Act provides for an opt-in regime (which basically requires consent) for marketing via email, SMS and similar techniques. It is allowed to send unsolicited communications to customers when the contact details have been obtained in the context of the sale of a product or a service, the message relates to its own similar products or services and the customer has been given an opportunity to object, free of charge and in an easy manner. If the customer does not object to the initial collection of its electronic contact details, the customer should be given the possibility to object in each message sent.
Specific rules apply to promotional telephone calls. These rules provide for an opt-out regime, but require a mandatory check of the do-not-call register.