Legal newsletter - how to create one?
Newsletter is one of the most useful email marketing tools. Although it is extremely popular and used by many entrepreneurs, it is not always used legally. How should you send a legal newsletter so as not to break the law? We advise.
Legal newsletter - the basics
Sending a newsletter usually qualifies as part of a largely consumer-driven marketing strategy. Therefore, the issues related to it are regulated by the acts related to the economic turnover between entrepreneurs and natural persons. These will primarily be the Act of May 30, 2014 on consumer rights, the Act of July 16, 2004 Telecommunications Law and the Act of July 18, 2002 on the provision of services by telecommunications, as well as the Act of August 29, 1997. . about personal data protection.
Their records mainly concern such issues as obtaining the recipient's consent to send the newsletter:
Art. 172 of the Telecommunications Law
1. It is prohibited to use telecommunications terminal equipment and automatic calling systems for the purposes of direct marketing, unless the subscriber or end-user has given their prior consent.
How to create a legal newsletter is also emphasized by the Act on the provision of electronic services:
Art. 10. 1. It is forbidden to send unsolicited commercial information to a designated recipient who is a natural person by means of electronic communication, in particular e-mail.
2. Commercial information is considered to be ordered if the recipient has consented to receive such information, in particular, for this purpose he has made available an e-mail identifying him.
3. The action referred to in par. 1, constitutes an act of unfair competition within the meaning of the provisions of the Act referred to in Art. 9 sec. 3 point 1.
Consent to send the newsletter
Therefore, as indicated by the above-mentioned provisions, the key issue in creating and sending a newsletter is obtaining the recipient's consent for both the sending of commercial messages and its automatic generation. These requirements result from two different acts, but they can be combined in one document.
What is particularly important, by obtaining the recipient's consent to the newsletter in accordance with the law, you also obtain his personal data. Usually it is an e-mail address (if the recipient's name and surname are part of it, it is personal data), first and last name (usually it is used to personalize the newsletter), and often also a telephone number. In this way, the entrepreneur collects a certain amount of personal data, and thus becomes their administrator. Therefore, it should first of all inform the consumer about the purpose of collecting such information and that the consumer has almost unlimited access to his data, can also correct it at will and request the trader to stop processing personal data. He is also required to provide him with his identification details.
It is worth remembering that the provisions of the Telecommunications Law changed in 2014 - previously, consent was required for sending commercial messages in a form other than electronic. The amendment introduced the need to obtain the recipient's consent also in the case of generating messages automatically, so if the recipients' consent comes from that period, the entrepreneur is obliged to obtain it again.
The form in which we obtain the consent of the newsletter recipient is equally important. It cannot constitute part of the regulations, it is also unacceptable to generate the content of the consent with the checkbox already marked I agree to the sending of the newsletter to my e-mail address. The trader should make sure, as far as possible, that the consumer consciously agrees to being sent e-mails. If we want the newsletter to be lawful, it is also unacceptable to make the transition to the website or online store conditional on consenting to receiving the newsletter.
Newsletter sent without the recipient's consent - penalties
A newsletter that reaches the recipient, even though he or she has not consented to it, is considered spam, and this, in turn, may have specific consequences for the entrepreneur. It may be a fine of up to 3% of the income earned by the punished entity. This penalty is indicated in Art. 209 paragraph. 1 of the Telecommunications Law, which is imposed by the President of the Office of Electronic Communications by way of a decision. The provisions of the act also say:
Art. 209. 1a. The penalty referred to in para. 1, may also be imposed in the event that the entity has ceased to infringe the law or has remedied the damage caused, if the President of UKE deems that the duration, scope or effects of the infringement indicate that this is the case.
2. Regardless of the financial penalty referred to in sec. 1, the President of UKE may impose on the operator of a telecommunications undertaking, in particular a person holding a managerial position or being a member of the management body of a telecommunications undertaking or an association of such undertakings, a fine of up to 300% of his monthly remuneration, calculated as for the purposes of the equivalent for annual leave.
The consequences of sending spam are also indicated in the Act on Providing Services by Electronic Means - in its context, entrepreneurs face a fine.
Sending a newsletter to which the recipient has not consented may also be treated as an act of unfair competition. In this case, especially if sending the newsletter is inconvenient and caused damage to the consumer, the addressee may make demands under civil law. He may demand:
cessation of unlawful activities;
removing the effects of prohibited activities;
submitting a single or multiple declaration with appropriate content and in an appropriate form;
compensation for the damage caused on general principles;
issuing unjustified benefits on general terms;
adjudging an appropriate amount of money for a specific social goal.
The law provides precisely the requirements that an entrepreneur must meet in order to have a newsletter legally compliant. First of all, he should obtain confirmation from the recipient using a properly constructed consent. Otherwise, his newsletter may be considered spam, and the sender of this type of message itself may suffer the consequences provided for by law.