Unsolicited Communication in Social Media

Abstract:

This article discusses whether commercial communication in social media is covered by the European opt in-model concerning unsolicited electronic mail for direct marketing purposes found in the directive on privacy and electronic communications (2002/58). It is concluded that messages in social media - in contrast to news feeds and advertisements - may be characterised as electronic mail.

However, the EU provisions on unsolicited electronic mail is found in the regulatory framework for telecommunication which as a starting point does not regulate web-based content such as social media services. The ban on unsolicited electronic mail does not apply to messaging systems in social media unless the system gives access to sending traditional e-mail. Until 12 June 2013, Member States could - in national law - uphold a broader definition of electronic mail in the light of the minimum harmonisation found in the distance selling directive (1997/7).

Now, the use of electronic mail for direct marketing purposes in social media must be assessed in accordance with the full harmonisation in the unfair commercial practices directive (2005/29). This directive does not contain a ban on »unsolicited« but »unwanted« solicitations by e-mail and other remote media - i.e. an opt-out solution.