It has been forbidden to send unsolicited “commercial, charity and/or public service messages” (in other words: advertising) to consumers since 2004, but as of 1 October 2009 this type of unsolicited message may no longer be sent to companies either. This not only concerns business email, but the spam ban also applies to all electronic communication services and networks (including SMS, MMS, fax, messages on social network sites and the like). The old-fashioned paper mail-out is not covered by this ban. This expanded spam ban has already been in place for some time in Belgium and several other European countries, and the Netherlands is now better aligned with the European regulations.
As of 1 October, you may only send emails or faxes if you have received permission for this from the recipient, or if the recipient is an existing customer relation. This permission must be “explicit”. This is also called an “opt-in”, which means that your business relation must actually give permission for such messages to be sent.
Receiving “opt-in” permission can for example be done by having a checkbox checked. In this way someone gives permission by check-marking “yes, I would like to be informed about…”. The checkbox may not be check-marked by default and the description of what the permission is being given for may not be too broad. A sentence such as: “I would like to receive information” is not specific enough. You must develop this further. This can for example be done with a selection menu where someone can choose from the types of information that you wish to send to customers. Attention: this permission may not be hidden in your general conditions, as this is not considered to be “explicit permission”.
As of 1 October, you may no longer send messages to the email addresses for which the explicit permission is missing, as discussed above. If you do this, you risk fines of several tens of thousands of euros from the telecom regulator OPTA.
What is not spam?
A message is not spam if you meet 3 conditions:
You have explicit permission;
It is clear who the sender of the message is (identifiable and recognizable; an alias or pseudonym is not enough);
The recipient can see how and where he can deregister if he no longer wishes to receive messages (preferably as a hyperlink in the message with which the receiver can deregister directly: “opt-out”). Deregistration must be free of charge.
There are exceptions to the “opt in” rule mentioned above. You may send messages without permission of the recipient if the recipient is an existing customer of yours and therefore has already purchased a product from you. If the customer has given an email address upon making the purchase, you may use this email address for mailings as long as these are about similar products and services. What is understood to be “similar” depends on the circumstances. In this, you must consider the “expectations of the recipient”.
The recipient must clearly be a customer relation. When asking for information or approaching a prospect, this is not yet such a relation because no product and/or service has yet been purchased. In that case, explicit permission is therefore required in advance.
Submit a complaint and more information
For complaints about business spam, you can go to http://www.spamklacht.nl. For more information or advice about the spam ban, entrepreneurs can go to the website of the Ministry of Economic Affairs. The OPTA can issue warnings and fines to a maximum of 450,000 euros, and answers the frequently asked questions about spam.