Danmark (DK)

Denmark

Spamming has since June 2000 been forbidden under the Marketing Practices Act (Markedsfoeringsloven). Implementing Art. 13 of the new European Union Privacy and Electronic Communications Directive will imply a change to Denmark's legal data protection framework on spam. According to the Directive, people who have already given their address to companies can be spammed with advertisements for "similar services" ('soft opt-in'), which the Marketing Practices Act had not previously allowed.

According to an amendment to Section 6a of the Marketing Practices Act there will be an exception to the prohibition of advertising via e-mails to consumers without prior consent. If the consumer has, in connection with a purchase on the Internet, forwarded his or her e-mail address to a company, the company is allowed to mail or spam the consumer's e-mail address. According to Section 6a, § 2 it is a precondition for the spamming, that the consumer be informed of the possibility to say "no" to any form of electronic advertising material. This implies that it is for the consumer to actively react to avoid getting spammed, which is a change compared to the former regulation where the consumer had to positively express his or her wish to receive advertising material. The amendment entered into force on July 25, 2003.

(Albert Koellner 2003-12-05)

The following information is referenced for historical purposes:

Denmark has effectively banned the sending of Unsolicited Commercial Email. In implementing Directives 97/7/EC and 97/66/EC, email has been placed on the same footing as fax and automated calling systems. A sender of advertising material via these media must have the prior consent of the recipient.

Full text of the Consolidated Act No. 699 of 17 July, 2000 is available at the Consumer Agency's site. Texts are provided in Danish and English in a variety of formats.

[...]

Unsolicited calls to certain customers ³

6 a.-(1) Where a supplier sells goods, immovable or movable property or work or services to customers, he shall not be allowed to make calls to anybody using electronic mail, automated calling systems (automatic calling machines) or facsimile machines (fax) for the purposes of such selling unless the particular customer has made a prior request for such calls.

   (2) A supplier may not call a specific natural person using other means of distance communication for the purposes of selling goods or services as referred to in subsection (1) above, if that person has asked the supplier not to make such calls, if a list made on a quarterly basis by the Civil Registration System (CPR) includes an indication that the person concerned has objected to receiving calls made for such marketing purposes, or if the supplier has become aware by a search of the Civil Registration System that the person concerned has objected to receiving such calls. Moreover, telephone calls to consumers are subject to the rules on unsolicited calls set out in the Act on Certain Consumer Agreements.

   (3) Subsection (2) above shall not apply where the person concerned has made a prior request for the call from the supplier.

   (4) The first time a supplier makes a call as described in subsection (2) above to a specific natural person whose name is not included in the CPR list, the supplier shall inform that person in a clear and comprehensible manner of the right of consumers to object to calls from suppliers as described in subsection (2) above. At the same time the person concerned shall be given easy access to object to such calls.

   (5) No payment may be charged for receiving or registering a withdrawal of a request made as referred to in subsection (1) above or an objection to unsolicited calls as described in subsection (2).

   (6) The Minister for Industry may lay down more specific rules on the duty of suppliers to give information according to subsection (4) and the duty to provide access to objecting to unsolicited calls as referred to in subsection (2).

[...]

3) This section includes provisions to implement Article 10 of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (the Distance Contracts Directive, OJ 1997 No. L 144 page 19-27; and Article 12 of Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (the ISDN Directive), OJ 1998 No. L 24, page 1 - 8). <back>

On March 1, the Danish Minister for Justice proposed (among other changes) that the following amendment was made to the existing law on "Visse forbrugeraftaler, markedsføringsloven og visse andre love" (Translation: Certain consumer agreements, marketing law and certain other laws) in order to comply with the EU-directive on unsolicited marketing. The amendment reads:

§ 6 a. En erhvervsdrivende må ikke rette henvendelse til nogen ved brug af elektronisk post, et automatisk opkaldssystem eller telefax med henblik på afsætning af varer, fast ejendom og andre formuegoder samt arbejds- og tjenesteydelser, medmindre den pågældende forudgående har anmodet om det.

Translation:

A business(person) may not contact anyone using electronic mail, an automatic calling system or telefax with the intent to sell goods, real estate and other financial goods, including work- and services, unless the receiver has requested so in advance.

It is interesting to note, that the comments from the ministry includes the following paragraph (section 3.2. Lovforslagets udformning):

Anvendelse af elektronisk post til markedsføring kan således påføre modtageren omkostninger og lægger beslag på modtagekapacitet på samme måde som anvendelse af telefax, der i medfør af direktiverne skal være omfattet af en »opt in-løsning«.

Der er risiko for øget brug af »spamming« (masseudsendelse af markedsføringsmateriale) og dermed en væsentlig forøgelse af reklamemængden, når anvendelsen af telefax begrænses.

Translation:

The use of elektronic mail for marketing purposes can incur costs on the receiver and uses receiving capacity in the same way as the use of telefax, that according to the [EU] directives must be part of a "opt in-scheme".

There is a risk of increased use of "spamming" (multiple- delivery of marketing material) and therefore a substantial increase of commercials, when the use of telefax is being limited.

Based on the comments to the proposal from the political parties, it looks like the amendments will stand.

(Jan Bruun Andersen 2000-05-03)
 

On 26 September 1998, the Consumer Ombudsman issused a statement concerning the collapse of negotiations about ethical rules for marketing and trade on the Internet. The apparent reluctance of business and trade to give the consumers the necessary protection was cited as the main reason for the impasse.

The Danish Ecommerce Association (Forening for Dansk Internet Handel - FDIH) in turn made its own statement more or less advocating "opt-out". There was a certain amount of controversy on the newsgroup dk.admin.netmisbrug which in turn resulted in the formation of the Association for Responsible Use of Email (FABEL: Foreningen for Ansvarlig Brug af EmaiL).

According to the Danish law on Consumer Contact, the only direct approach allowed is postal mail. Unsolicited contact by telephone, fax, and, by extension, email are thus prohibited.

(Beebit 1998-06-08)