29 September 2014

 

Email Spam: Cyprus Advertising Law

The phenomenon of mass unsolicited communications commonly called “spam” or “junk mail” or “unwanted commercial correspondence” has increased significantly in Cyprus mainly through email and messages on mobile phones.

According to Cyprus Advertising Law, the use of electronic mail (including all the automated calling systems without human intervention, such as sms or fax) for the purposes of direct marketing, may only be allowed in respect to subscribers who have given their prior consent. It is a general rule that unsolicited communications for purposes of direct marketing are not allowed without the consent of the subscribers concerned.

 The Law states that the “consent” of the subscribers must be free, explicit and particular declaration of intent, which is expressed clearly and with the full knowledge of the subscriber that, at the exact moment, is accepting the processing of his or hers personal data. Additionally, it should be given the possibility of a special declaration, such as, for example, by selecting “Yes” or “No” or putting “√” in a box, in a separate section, which can specifically refers to direct marketing. We must note that the box should not be already ticked but the subscriber must complete the box.

Despite the above, in cases where a natural or legal person obtains from its customers contact details for electronic mail, in the context of the sale of a product or service, the same natural or legal person may use these electronic details for direct marketing of its own similar products or services. It should also be pointed out that this exception concerns sending electronic mails from the same sender and not subsidiaries or parent companies or other members of the group companies.

In such electronic mails the customers must have clearly and distinctly the opportunity to object, free of charge and in an easy manner, such use of their electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use. The request for removal by the recipient must be valid for all the future campaigns, not just the relevant one.

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In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender (or the person on whose behalf the communication is made), or without a valid address for the recipient’s removal request is prohibited.

It is worth mentioning that several senders argued that their emails or messages were informative and not advertising, but this argument did not succeed. If the relevant electronic communication indicates the company name or product or service then such emails are considered advertising electronic emails or messages.

The Commissionerfor Personal Data Protectioniscompetent toexaminecomplaintsfor violationof the Act[1]andmay imposesanctions onthose whobreak the lawincludinga fine up to€30,000. The Commissioner may also impose on the controllers or their representatives, if any, the following administrative sanctions in case of contravention of their obligations which arise from this Law and from every other regulation concerning the protection of individuals with regard to the processing of personal data:

  1. a warning with a specific time-limit for termination of the contravention,
  2. temporary revocation of a license,
  3. permanent revocation of a license,
  4. the destruction of a filing system or the cessation of processing and the destruction of the relevant data.

A decision issued by the Commissionerfor Personal Data ProtectionAll is subject to judicial review through an appeal to the Supreme Court under Article 146 of the Constitution within 75 days from the date it is published.

For further information on the subject please contact This email address is being protected from spambots. You need JavaScript enabled to view it..

 


[1] The Regulation of Electronic Communications and Postal Services Law of 2004 112(I)/2004