Email Marketing

02.02.2010

While not being a member of the European Union (EU), Norway is bound to implement most EU legislation - including the e-Privacy Directive (Directive 2002/58/EC) and the e-Commerce Directive (Directive 2000/31/EC) - by the European Economic Area (EEA) Agreement. The e-Privacy Directive's provisions on email marketing were implemented into the previous Norwegian Marketing Act, with effect from 1 February 2005. With effect from 1 June 2009, the provisions on email marketing passed to § 15 of the new Norwegian Marketing Act, without material changes.

Norwegian law is more restrictive than the minimum requirements provided by the e-Privacy Directive and therefore may be more restrictive than national legislation in other EU/EEA countries. Norwegian law is based on an opt-in principle: marketing emails cannot be sent without the individual consent of the recipient. Consent must be given voluntarily and expressly and must be based on relevant information. It is illegal to send marketing emails without prior consent to any individual, including individuals who are not 'subscribers' in the meaning of Article 13 of the e-Privacy Directive, and regardless of whether or not they are consumers. Norwegian law does permit email marketing without prior consent towards a merchant's existing customers, provided that the marketing concerns the merchant's own products of a similar nature to the ones on which the customer relationship is based. Individuals receiving marketing emails must always be given the opportunity to opt out, free of charge. All marketing emails must identify the merchant.

1. Basic rule: Opt-in regime for email marketing in Norway
A provision on email marketing was first introduced in Norway at the end of 2000, in § 2 b of the Norwegian Marketing Act of 1972. The provision was then amended on 1 February 2005 to implement Art. 13 of the e-Privacy Directive (Directive 2002/58/EC). The provision was later passed to § 15 of the new Norwegian Marketing Act of 2009, which entered into force on 1 June 2009, but without any material changes being made.

Norwegian law is based on an opt-in principle with regards to email marketing: emails cannot be used for marketing purposes unless the sender has obtained prior consent from the recipient. Norwegian law sets out that consent must be given voluntarily, expressly and be based on relevant information. In order to fulfil these requirements, it is preferable to obtain consent in writing, although consent given through an electronic opt-in system will generally be accepted.

Norwegian law on email marketing applies to any marketing emails sent from third countries as well as other EU/EEA countries to individuals in Norway. Unlike most other information society services delivered from other EU/EEA countries to end users in Norway, email marketing is not subject to the laws of the EU/EEA country where the sender is situated, but rather to Norwegian material law (ref. § 6 of the Norwegian e-Commerce Act).

2. Individuals protected by the opt-in regime
Norwegian law prohibits the sending of marketing emails to any individuals, not just to consumers. This applies regardless of whether the individual is a 'subscriber' in the sense of Article 13 of the e-Privacy Directive. In practice, this means that employees who use personal email addresses on their employers' email system are also protected. It is therefore against the law to use emails to market products or services pertaining to the individual's work responsibilities, as well as products or services meant for personal consumption. However, sending marketing emails to shared company email addresses is permitted. Therefore, marketing emails may not be sent to firstname.lastname@company.com, however it is legal to send such emails to info@company.com

3. The exception for existing customers
Merchants are allowed to send marketing emails to their existing customers, even if the customers have not given their express consent. In order for an existing customer relationship to qualify as such, it is not sufficient for the individual to purchase goods or services from a merchant on one or two occasions. The customer relationship must be based on regular purchases over time. The number of individual purchases required in order to establish a customer relationship will vary, depending on the nature of the business of the seller. For example, a one-time purchase of a car followed up by annual car services will normally constitute a customer relationship between a car dealership and a customer, whereas individual purchases of books or CDs with the same frequency would probably not suffice.

The goods and services that can be marketed via email based on the existing customer exception are limited to goods and services similar in nature to those on which the customer relationship is based. Further, merchants can only market their own goods and services, not those of any third party, under this exception.

As the scope of the exception for existing customers can be uncertain, the advice to merchants wanting to send marketing emails to their customers is to obtain express email marketing consent from the individuals concerned.

4. Opt-out for existing customers
The Marketing Act sets out that the customer shall be given the opportunity to opt out of receiving marketing emails, both when the email address is collected and in connection with the sending of each subsequent marketing email. Customers must be allowed to opt out free of charge. Marketing emails usually include some text at the bottom allowing customers to unsubscribe from future communications by replying to the email or by clicking on a hypertext link.

Individuals who receive emails based on prior consent are allowed to withdraw their consent at any time.

5. Further obligations
Any marketing emails sent to individuals in Norway shall clearly state on whose behalf the marketing is carried out, including contact details. This is set out in § 9 of the Norwegian e-Commerce Act.