- On August 28, 2017
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In 2016 a new proposal was made by the Danish government for a new Danish Marketing Practices Act to ensure conformity with the EU regulation. There was hope to simplify the act and adjust its provisions to correspond with the modern marketing forms that are available thanks to technological development.
What does it consist of?
The proposal aims to simplify existing legislation in Denmark and offer better support in the current markets. Basically, the proposal simplifies and does not completely modify the current Danish regulation and fits it better with the new EU regulation.
Why is it done?
The last modification of legislation was made in 2005, and there was a recognition that the laws should be updated to fit the times. This is particularly true given the technological advances of the last decade that directly influence new marketing methods. Finally, the main reason why this proposal was made is to ensure that Danish people have the necessary tools and feel confident in the market.
What is in the new law?
- Relaxation of the rules regarding unsolicited applications by electronic mail (“spam”). In the current Act, businesses can only market their products and services to customers via electronic mail if the consumer has given a prior consent to this. This relaxation opens up for the possibility for businesses to market “own similar products or services” without prior consent. The definition of “own similar products” will depend on the expectations the business has given to the consumer. This leaves room for a judgment by businesses, which limits are likely to be defined by the court.
- The rules regarding unsolicited applications by electronic mail (“spam”) will also be relaxed in regards to B2B marketing. Currently, a prior consent is needed for a business to market its products towards another business. The new proposal reverses this rule so that a business can make an unsolicited application to another business without prior consent, with the purpose of marketing its “own products” if there is an existing customer relation.
- The vocabulary requirements are relaxed with regard to warranty language. Currently, all warranties must be in Danish. In the new proposal that requirement is partly lifted, meaning that a warranty only has to be written in Danish if the marketing is also in Danish.
- The prohibition on empty warranties is lifted since this is already regulated in misrepresentation clauses in the Danish Marketing Practices Act and the Danish Act on Unfair Marketing in Consumer Relations.
- The consumer ombudsman will be given extended control remedies e.g. the possibility to take identical electronic copies of data content from electronic medias. This means that in the future the ombudsman will have more tools to secure evidence in cases referred to him.
- With regard to services on a time reimbursement basis (services conducted without agreement on a fixed price, thus the service provider will send a bill after concluding the work based on spent time and used materials), the consumer will be given a wider possibility to ask for additional information in order to control the price. Currently, this possibility is restricted to “special circumstances” but in the new proposal, the consumer will always have the possibility to ask for the information without any special reasons.
- The current obligation for businesses to guide and instruct consumers is lifted since this consumer protection is already included in the misrepresentation clauses in the Danish Marketing Practices Act and in the Danish Sale of Goods Act.
- The current provision on an obligation for businesses to post signs for organized discounts is lifted since this provision is conflicting with the directive of Unfair Commercial Practices
Electronic Marketing in Denmark
A company can process data concerning existing customers for marketing of the company’s own products if the processing is necessary for the purposes of the legitimate interests pursued by the company and these interests are not overridden by the interests of the consumer. A company may not disclose data concerning a consumer to a third company for the purpose of marketing or use such data on behalf of a third company for this purpose unless the consumer has given his explicit consent.
According to the Danish Marketing Practices Act, a trader must not approach anyone by means of electronic mail, an automated calling system or facsimile machine with a view to the sale of products, real property, other property, labour, and services unless the party concerned has requested him to do so. If a trader has received a customer’s electronic contact details in connection with the sale of products or services, he may market his own similar products or services to that customer by electronic mail, provided that the customer has the option, free of charge and in an easy manner, of declining this both when giving his contact details to the trader and in the event of subsequent communications.
The most important changes that the actual legislation has are:
The prohibition of covert advertising is intensified in that any “commercial intentions” that a business operator may have when entrusting a product to. Thus, it is no longer a requirement that an agreement has been entered into between the business operator and the person managing the exposure. Consequently, any advertising must be expressly stated according to the new Act, regardless of whether or not any agreement of any actual advertising has been made.
The language requirements in relation to warranties are changed so as to only require warranties to be in Danish when the relevant marketing is in Danish. Furthermore, the prohibition of empty warranties is lifted and instead, empty warranties will be covered by the Act’s provisions on misrepresentation and by the executive order on unfair business to consumer commercial practices.
Until now, business operators who had obtained a customer’s email address through any transaction were only allowed to send advertisements regarding products particularly similar to products already purchased by said customer.
In the new Marketing Practices Act, this access is expanded in that “similar products or services” may now be interpreted according to the expectations created with the customer by the business operator. The business operator may not expand the product category simply by notifying the customer hereof, and the customer must have continued easy and effortless access to decline further communications.