From consumers’ point of view, unsolicited commercial communications or the so-called. “SPAM” is an undesired form of communication; most frequently with advertising content. As from traders’ point of view, such messages seem to be modern means of achieving marketing goals, serving the business for generating profits. For both parties – consumers and the business, it is useful to know the regulative limits applicable to such messages, which is why this article aims to outline some key practical issues in this regard.
What is the mandatory content of commercial communications?
The requirements applicable for the content of such messages, are quite concise, despite being explicitly listed in the Bulgarian E-Commerce Act. The minimum content required includes:
- An explicit indication that the message is for commercial purposes, i.e. that it is aimed at service/goods providing
This requirement can also be met more implicitly, for example:
“This commercial email aims to get you acquainted with the services we provide regarding…”;
- Explicit indication that the message is unsolicited
This requirement is met if the message is explicitly marked as “SPAM” in the subject of the email. If a message is sent without the prior consent of the recipient (whether that recipient is a natural or legal person), such designation should be applied to the email;
- Explicit indication of the sender
The main purpose of this requirement is to make it possible for the recipient to send his/her refusal to receive such messages in the future to a valid e-mail address.
In practice this requirement is frequently complied with by an ending disclaimer stating that:
“If you do not want to receive more messages like the present one, please, send us back a blank email.”;
- Clear and unambiguous specification of the terms and conditions for using promotional offers, such as discounts, bonuses and gifts, as well as conditions for participation in competitions and awards;
- Other specific information required by law.
Whom may commercial communication be addressed to?
Subscribers can be both – individuals or legal entities. Essentially, national and European regulatory framework are primarily aimed at protecting the fundamental rights of individuals, in particular their right to privacy, as well as the legitimate interests of legal entities.
The only legally compliant way to approach this category of recipients by using commercial communications is if the individual has provided his/her prior consent to receive such messages. Otherwise, there is an absolute prohibition on sending such messages to individuals.
Corporate Recipients (companies)
The Consumer Protection Commission (“the CPC”) keeps an electronic register of the email addresses of legal entities which have officially declared their refusal to be included in recipient lists for unsolicited commercial communications. Sending unsolicited commercial messages to email addresses entered in the register is prohibited by law.
Therefore, before sending a message to a company, it is recommendable that the email address of the recipient should be checked-up in the register.
Specific features of both categories of recipients
In case a trader has received its customer’s email address in connection with business communication regarding its commercial activity, this communication means (vie the email address obtained) can be used for the purposes of direct trading with similar products or services. This exception is exclusively permissible only if customers are clearly and unambiguously, free of charge, allowed to object to receive such messages.
What are the sanctions for violations of the commercial communication regulations?
Violation of an individual’s personal data integrity constitutes an infringement of the Bulgarian Personal Data Protection Act, as well as the GDPR.
Apart from this, according to the Consumer Protection Act (mainly focused on the protection of individuals), sending such messages is regarded to as an aggressive form of unfair commercial practice. Non-compliance with the CPA leads to administrative-penal liability, namely:
- if an offence is committed by a natural person – a fine at the amount of BGN 1,500 to BGN 30,000 is imposed;
- if an offence is committed by a company or by a sole trader – a property sanction amounting from BGN 2,000 to BGN 50,000 is imposed.
With regard to legal entities, sending of unsolicited commercial communications to email addresses entered in the CPC register is completely prohibited. Any violation of this prohibition leads to the imposition of a fine amounting from BGN 250 to BGN 1,500. The sanction for repeated infringement is a fine from BGN 1,000 to BGN 4,000.