Danish Consumer Ombudsman publishes guidance on consent to marketing

The Danish Consumer Ombudsman recently published a new, revised version of their previous guidance from 2016 on use of competitions and other rewards when procuring consumers' consent to marketing.

The guidance has been revised, among other things, due to an increase in the number of complaints filed with the Consumer Ombudsman against unlawful telemarketing, where the consumer's consent has been procured when they participated in an competition or a survey online but where it was not obvious to the consumer that the purpose of the competition or the survey was to procure the consumer's consent to receive marketing. 

The revised guidance includes the following specifications and amendments:

• As information on which companies will contact the consumers for the purposes of marketing is relevant information for the consumer to make an informed decision on whether to consent to receive marketing material or not, information about the companies must be clear. Such information must not be hidden in a link or a mouse-over text, unless the company is using a technical solution which ensures that the consumer is directed to the information, or the companies in question belong to the same group.
  
  However, it appeared from the previous version of the guidance that specification of the consumer's consent to receive marketing from a number of companies could take place by using a mouse-over function or a link to a site or a list of names for the companies in question, if only the number of companies appeared directly from the text of the consent. 
  
  
• On the other hand, it may be specified in a link or a mouse-over text which products the individual companies will be marketing, and which of the forms of communication mentioned in the text of the consent the consumer may expect the individual companies to be using. 
  
  
• In the opinion of the Consumer Ombudsman, a receipt should be sent to the consumer on a durable medium if consent is procured on behalf of other companies which are to use such consent. A lead company must thus send an email or approach the consumer by using another durable medium immediately after the consumer has participated in a competition. 
  
  The approach must include information that the consumer has consented to receive marketing and that such consent may be revoked by contacting the lead company.
  
  
• A consumer may also inform the company arranging the competition about revocation of consent. If a consumer revokes consent, the company must inform all other companies to whom it may have sold such consent.
  
  
• A company may be liable to a fine if it does not inform the consumer that consent for marketing may be revoked, or does not ensure that the consumer can revoke the consent easily and at no cost. In that case, the consent will furthermore be invalid.
  
  
• If a company, including through partners, invites the consumer to visit a website etc and participate in a competition where the purpose is to procure the consumer's consent to receive marketing, for instance through a posting on social media or a banner advertisement etc, and/or the consumer has to read one or several pages to get to the consent form, it depends on an overall assessment of the entire competition flow whether the consent complies with the requirements for consent.
  
  It will constitute misleading marketing contrary to sections 5 and 6 of the Danish Marketing Practices Act if it is not stated clearly in a banner advertisement or any other invitation to participate in the competition that the purpose is to procure the consumer's consent to receive marketing, as the consumer takes a transactional decision to participate by clicking the invitation.

In a press release of 21 June 2021, the Consumer Ombudsman additionally advised that an updated version of the Spam Guidance from 2018 will be published soon.

Read the revised guidance on competitions (in Danish)

Do you want to know more?

If you would like to know more about the rules governing the procurement of consent to marketing, please contact Plesner's Marketing and Consumer Law team.