Monday 10th December 2018

ePrivacy Proposal

This text is a draft proposal published by the European Council on 4th May, 2018

Chapter 1 (Articles 1 - 4)

General provisions

Chapter 2 (Articles 5 - 11)

Protection of electronic communications of end-users and of the integrity of their terminal equipment

Chapter 3 (Articles 12 - 17)

End-users' rights to control electronic communications

Chapter 4 (Articles 18 - 20)

Independent supervisory authorities and enforcement

Chapter 5 (Articles 21 - 24)

Remedies, liability and penalties

Chapter 6 (Articles 25 - 26)

Delegated Acts and Implementing Acts

Chapter 7 (Articles 27 - 29)

Final provisions

Recitals (1-42)

Select an Article

Select a Recital

Article 16

Unsolicited and direct marketing communications

1. Natural or legal persons shall be prohibited from using electronic communications services for the purposes of sending direct marketing communications to end-users who are natural persons unless they have given their consent.

2. Notwithstanding paragraph 1, where a natural or legal person obtains contact details for electronic message from end-users who are natural persons, in the context of the sale of a product or a service, in accordance with Regulation (EU) 2016/679, that natural or legal person may use these contact details for direct marketing of its own similar products or services only if such end-users are clearly and distinctly given the opportunity to object, free of charge and in an easy manner, to such use. The right to object shall be given at the time of collection of such end-users’ contact details and, if that end-user has not initially refused that use, each time when a natural or legal persons sends a message to that end-user for the purpose of direct marketing.

2a. Member States may provide by law a period of time, after the sale of the product or service occurred, within which a natural or legal person may use contact details of the end-user who is a natural person for direct marketing purposes, as provided for in paragraph [sic]*

3. Without prejudice to paragraphs 1 and 2, natural or legal persons using electronic communications services for the purposes of placing direct marketing calls shall present the calling line identification on which they can be contacted.

3a. Member States may require natural or legal person using electronic communications services for the purposes of placing direct marketing calls to present a specific code or prefix identifying the fact that the call is a direct marketing call in addition to the obligation set out in paragraph 3. Member State requiring the use of such a specific code or prefix shall make it available for the natural or legal persons who use electronic communications services for the purposes of direct marketing calls.

4. Notwithstanding paragraph 1, Member States may provide by law that the placing of direct marketing voice-to-voice calls to end-users who are natural persons shall only be allowed in respect of end-users who are natural persons who have not expressed their objection to receiving those communications.

5. Member States shall ensure, in the framework of Union law and applicable national law, that the legitimate interest of end-users that are legal persons with regard to direct marketing communications sent by means set forth under paragraph 1 are sufficiently protected.

6. Any natural or legal person using electronic communications services to send direct marketing communications shall, each time a direct marketing communication is sent:

(a) reveal his or its identity and use effective return addresses or numbers;

(b) inform end-users of the marketing nature of the communication and the identity of the legal or natural person on behalf of whom the direct marketing communication is sent;

(d)** clearly and distinctly give the end-users who are natural persons a means to object or to withdraw their consent, free of charge, at any time, and in an easy and effective manner, to receiving further direct marketing communications, and shall provide the necessary information to this end. This means shall also be given at the time of collection of the contact details according to paragraph 2. It shall be as easy to withdraw as to give consent.


*We suspect this should read: “Member States may provide by law a period of time, after the sale of the product or service occurred, within which a natural or legal person may use contact details of the end-user who is a natural person for direct marketing purposes, as provided for in paragraph 2”. The European Council marked the number “2” for deletion in its latest proposal.

**Provision 6(c) was marked for deletion in the European Council’s latest proposal.