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 In the meantime, GDPR Article 94 makes it clear that references to the repealed Directive 95/46/EC will be replaced with references to the GDPR.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.

The Act will apply to most electronic marketing activities, as there is likely to be processing and use of personal data involved (eg, an email address is likely to be ‘personal data’ for the purposes of the Act).

Pursuant to the Marketing Control Act (LOV-2009-01-09-2, Nw: Markedsføringsloven) section 15, it is prohibited in the course of trade, without the prior consent of the recipient, to send marketing communications to natural persons using electronic methods of communication which permit individual communication, such as electronic mail, telefax or automated calling systems (calling machines).

Prior consent is however not required for electronic mail marketing where there is an existing customer relationship and the contracting trader has obtained the electronic address of the customer in connection with a sale. The marketing may only relate to the trader’s own goods, services or other products corresponding to those on which the customer relationship is based.

At the time that the electronic address is obtained, and at the time of any subsequent marketing communication, the customer shall be given a simple and free opportunity to opt out of receiving such communications.

‘Electronic mail’ in the context of the Marketing Control Act means any communication in the form of text, speech, sound or image that is sent via an electronic communications network, and that can be stored on the network or in the terminal equipment of the recipient until the recipient retrieves it. This includes text and multimedia messages sent to mobile telephones.

Direct marketing emails must not conceal or disguise the identity of the sender. If the email is unsolicited, it shall clearly state that the email contains a marketing message upon receipt of the message (The Norwegian E-Commerce Act (LOV-2003-05-23-35), Nw: Ehandelsloven, section 9).