Everyday actions in the day-to-day running of our business often have, on many occasions, a greater background than it might seem at first glance. Undoubtedly a common and important action is to publicize our activity, disclosing commercial advertisements to attract potential users and buyers of our products or services. Therefore, in this case I am talking about advertising and I will especially refer to digital advertising or “on-line” media, to which we resort as a company and to which we are exposed daily as consumers.
It seems simple, but I don’t know if any of you, dear readers, have stopped to think, to investigate, to investigate what surrounds this work. Is everything valid in commercial disclosure? Let’s analyze it and find out how everything is not valid.
If we review the legislation affecting advertising, we immediately find the following rules:
- General Advertising Law
- General Law for the Defense of Consumers and Users
- Believe it or not, the Organic Law on Personal Data Protection and its Regulations also apply.
These rules affect conventional advertising and on-line advertising, but the use of technology (it is no longer new, it is what we have) leads to the use of advertising forms in the “on-line” environment which, of course, has brought with it the appearance of specific regulations on electronic commercial communications, so that we must add these other rules to the above:
- Information Society Services and Electronic Commerce Act (Ley de Servicios de la Sociedad de la Información y el Comercio Electrónico)
- General Telecommunications Law.
Didn’t it seem simple? … well, you can imagine that it is not so simple. Of course, this is a very extensive subject that this article does not intend to attack completely nor is its purpose, but if we are going to unravel some issues that may be of interest and answer some questions that anyone who intends to carry out an e-mail marketing campaign, inbound, display or similar, should consider and what we do not reach now, we will deal with later.
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To whom can I send advertising? Or put another way, which database can I use for commercial or advertising purposes?
The answer is that strictly speaking, with the Personal Data Protection regulations governing all those of us who engage in or wish to engage in advertising, commercial prospecting, distance selling or any analogous activity, including selling our own products and/or services or those of a third party, we will only be able to use personal data in two cases:
- The data must be in a publicly accessible source (I will describe later what is considered to be a publicly accessible source).
- When the data have been provided by the data subject, i.e. by the owner, or have been obtained with his or her informed consent.
No other assumption is valid. Today we are going to analyze how to create a database for our marketing and advertising actions based on the first of the above options.
What is considered a public access source?
Those data whose consultation can be made by anyone, which is not prevented by a rule and without further requirement, if any, the payment of a fee for access. In other words, any data appearing on the Internet can be considered a source of public access, but … it is not. The LOPD itself is responsible for taxing, in a closed and exclusive manner (“numerus clausus” in legal jargon), those possible sources of public access that can nourish our advertising database. They are:
- The promotional census. This is curious, since this census does not exist today and certainly should not be confused with the electoral census. The promotional census should be a list drawn up by the National Institute of Statistics from the data already included in the electoral census – with due exclusions for those who do not wish to be on it – and its creation would be of vital importance for any company involved in marketing.
- Guides to electronic communications services (white pages) or telephone directories. This is a very delicate case, since on the one hand, the directories have an expiration date, i.e., the directory of five years ago ceased to be a source accessible to the public in its annuality and, on the other hand, any additional data that we include, undermines its status. On the other hand, there is a right to exclude ourselves from these telephone directories and from processing for advertising purposes, which means that before any commercial action, we should check whether, on a case-by-case basis, this right has been exercised.
- The lists of persons belonging to professional groups, with the limitation of their strict professional data and in the same way as telephone directories and directories, have an expiration date in each of their editions and may be excluded for advertising purposes.
- Newspapers and official bulletins. Here we have the Official State Gazette, the provincial and regional gazettes and the Official Gazette of the Commercial Registry, so it will be possible to process the data that appear there for advertising purposes. However, the data appearing in the public registers: the Mercantile Register and the Land Registry are NOT considered as a source accessible to the public, so that the processing can only be authorized with the consent of the interested party. Neither are the edicts of courts and tribunals published on the notice boards considered as a public source.
- The media. Here we find one of the big questions: Is the Internet a means of communication? The answer is NO, for the purposes of data protection it is not a medium, it is a communication channel, as can be the telephone or e-mail. Particularly I do not agree, at least today with the development it has had, but the rule is what it is and are considered sources accessible to the public, everything that is disseminated through press, radio and television, whether conventional or digital, except scientific journals.
