Opinion 5/2004 on unsolicited communications for marketing purposes under Article 13 of Directive 2002/58/EC

Nov 4, 2026

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Opinion 5/2004 of the Article 29 Data Protection Working Party examines concepts in Directive 2002/58/EC related to unsolicited direct marketing communications. It addresses requirements for opt-in consent for automated calling machines, faxes, and electronic mail (including SMS), the exception for communications to existing customers, sender identity transparency, and the need for a valid address to request cessation. The opinion also clarifies issues including electronic mail definitions and the treatment of communications to legal persons.

LanguageEnglish

CategoryGeneral

FormatPDF

Pages10

Reading Time4 min

AccessFree to download

Introduction

Overview of issues raised in the present opinion

Opt-in rule and exceptions

Elements covered by the opinion

Issues raised

The concept of electronic mail

ARTICLE 29 Data Protection Working Party 11601/ENWP 90 Opinion 5/2004 on unsolicited communications for marketing purposes under Article 13 of Directive 2002/58/EC Adopted on 27 February 2004 This Working Party was set up under Article 29 of Directive 95/46/EC. It is an independent European advisory body on data protection and privacy. Its tasks are described in Article 30 of Directive 95/46/EC and Article 14 of Directive 97/66/EC. The secretariat is provided by Directorate E (Services, Copyright, Industrial Property and Data Protection) of the European Commission, Internal Market Directorate-General, B-1049 Brussels, Belgium, Office No C100-6/136 . [Website: www.europa.eu.int/comm/privacy](Website: www.europa.eu.int/comm/privacy) THE WORKING PARTY ON THE PROTECTION OF INDIVIDUALS WITH REGARD TO THE PROCESSING OF PERSONAL DATA set up by Directive 95/46/EC of the European Parliament and of the Council of 24 October 19951, having regard to Articles 29 and 30 paragraphs 1 (a) and 3 of that Directive, having regard to its Rules of Procedure and in particular to articles 12 and 14 thereof, HAS ADOPTED THE PRESENT OPINION: Opinion 5/2004 on unsolicited communications for marketing purposes under Article 13 of Directive 2002/58/EC 1. INTRODUCTION Directive 2002/58/EC on Privacy and Electronic Communications notably harmonised the conditions under which electronic communications (e.g. e-mail, SMS, fax, telephone) can be used for marketing purposes 1. While the present document focuses on these conditions, the Working Party notes that other provisions in the Directive may require attention in the future. Building on the existing opt-in rules in place in certain Member States, Article 13 of Directive 2002/58/EC has introduced a harmonised regime for electronic communications to natural persons for direct marketing purposes. There is a general understanding that, despite this harmonisation, some concepts used in Article 13 of Directive 2002/58/EC on unsolicited communications appear to be subject to differences of interpretation. In accordance with Article 15 (3) of Directive 2002/58/EC in conjunction with Article 30 of Directive 95/46/EC, the Working Party has examined these concepts more closely and adopted the present opinion in order to contribute to a uniform application of national measures under Directive 2002/58/EC. Note that communications for direct marketing purposes have been addressed in previous documents of the Working Party2. 1 The Directive has to be transposed by the 31st of October 2003. 2 See for instance Opinion 7/2000 On the European Commission Proposal for a Directive of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector of 12 July 2000; Recommendation 2/2001 on certain minimum requirements for collecting personal data on-line in the European Union. 2. OVERVIEW OF ISSUES RAISED IN THE PRESENT OPINION The opt-in rule requires that consent be given by subscribers prior to the use of automated calling machines, faxes or electronic mails, including SMS, for the purpose of direct marketing. There is an exception for communications sent to existing customers, subject to certain conditions (see below) . For (fixed and mobile) voice telephony marketing calls, other than via automated calling machines, Member States may choose between an opt-in and 3 an opt-out system . In addition, the sender on whose behalf the communication is made may not disguise or conceal its identity. There must also be a valid address to which the recipient may send a request that such communications cease.4 The Working Party had decided to provide an opinion on the following elements of this new regime: – the concept of electronic mail; – the concept of prior consent of subscribers; – the concept of direct marketing; – the exception to the opt-in rule; – the regime for communications

FAQs

What is the main focus of Opinion 5/2004?

It focuses on the concepts and interpretation of rules in Directive 2002/58/EC for unsolicited communications used for direct marketing purposes, aiming at uniform application of national measures.

How does the opt-in rule work for electronic direct marketing?

Consent must be given by subscribers before using automated calling machines, faxes, or electronic mails (including SMS) for direct marketing.

What requirements apply to the sender and to stopping such communications?

The sender may not disguise or conceal its identity, and communications must include a valid address where the recipient can request that they cease.

Nov 4, 2026

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