Data Protection in Romania

Electronic marketing in Romania

EU regulation

The GDPR will apply to most electronic marketing activities, as these will involve some use of personal data (eg, 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.

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 In the meantime, GDPR Article 94 makes it clear that references to the repealed Directive 95/46/EC will be replaced by references to the GDPR.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


Romania regulation

The processing of personal data for electronic marketing purposes is regulated under Law no. 506/2004, on the processing of personal data in the electronic communications sector implementing Directive 2002/58/CE ("Law no. 506/2004").

According to this law, it is forbidden to send commercial communications by using automatic call and communication systems that do not require the intervention of a human operator, by fax or by electronic mail or any other method employing publicly available electronic communications services, except where the subscriber or user of a publicly electronic communications service has expressly consented in advance to receive such communications. 

However, in cases where a natural or legal person has directly obtained the email address of a client upon the sale or provision of a product or service, the natural or legal person may use the respective address for the purpose of sending commercial communications regarding similar products or services, provided that clients are clearly and expressly offered the possibility to oppose by way of an easily accessible and free-of-charge method, not only when the email address is collected but also with each commercial communication received, in a case where the customer has not initially objected.

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