Data Protection in Belgium

Electronic marketing in Belgium

EU regulation

The GDPR will apply to most electronic marketing activities, as these will involve some use of personal data (e.g. an email address which includes the recipient's name). The most plausible legal bases for electronic marketing will be consent, or the legitimate interests of the controller (which is expressly referenced as an appropriate basis by Recital 47).   Where consent is relied upon, the strict standards for consent under the GDPR are to be noted, and marketing consent forms will invariably need to incorporate clearly worded opt-in mechanisms (such as the ticking of an unticked consent box, or the signing of a statement, and not merely the acceptance of terms and conditions, or consent implied from conduct, such as visiting a website).

Data subjects have an unconditional right to object to (and therefore prevent) any form of direct marketing (including electronic marketing) at any time (Article 21(3)).

Specific rules on electronic marketing (including circumstances in which consent must be obtained) are to be found in Directive 2002/58/EC (ePrivacy Directive), as transposed into the local laws of each Member State. The ePrivacy Directive is to be replaced by a Regulation. However, it is currently uncertain when this is going to happen, as the European Commission has discarded its draft of the ePrivacy Regulation after disagreements by the Member States in the Council of the European Union. In the meantime, GDPR Article 94 makes it clear that references to the repealed Directive 95/46/EC will be replaced with references to the GDPR. As such, references to the Directive 95/46/EC standard for consent in the ePrivacy Directive will be replaced with the GDPR standard for consent.


Belgium regulation

The Data Protection Act applies to most electronic marketing activities, as there is likely to be processing of personal data involved (e.g. an email address is likely to be ‘personal data’ for the purposes of the Data Protection Act). The Data Protection Act does not contain additional rules to the GDPR for the use of personal data for the purposes of electronic marketing. 

However, specific rules are set out in the Belgian e-commerce legislation (Book XII of the Code of Economic Law) regarding opt-in requirements: 

  • These rules apply to all ‘electronic messages’, such as emails and text messages (Short Message Systems or SMS). Other types of electronic communication such as instant messaging and chat may also fall within the scope of these rules depending on the specific context. This covers not only clear promotional messages, but also newsletters and similar communications. Indeed, any form of communication intended to directly or indirectly promote goods, services, the image of a company, organisation or person which/who exercises a commercial, industrial or workmanship activity or regulated profession falls within the scope of these rules.
  • As a general principle, the prior, free, specific and informed consent of the recipient of the message must be obtained (‘opt-in principle’).
  • Two exceptions apply to the opt-in principle. No prior, free, specific and informed consent is to be obtained if:
    • the electronic marketing message is sent to existing customers of the service provider, or
    • the electronic message is sent to legal persons (e.g. to a general email address such as [email protected]). 

These exceptions are subject to compliance with strict conditions. 

  • Furthermore, all electronic messages must contain a clear reference to the recipient's right to opt out, including means to exercise this right electronically.

Neither the Data protection Act nor the DPA Act include specific provisions on electronic marketing.

The Data Protection Authority has adopted specific guidelines regarding direct marketing1.

Footnotes

1. Data Protection Authority, Recommendation on the processing of personal data for direct marketing purposes (No. 1-2020, 17 January 2020).

Continue reading

  • no results

Previous topic
Back to top