French law and the sending of prospecting emails

Where do you draw the line between sending prospecting emails and spam, in France?

In view of the numerous laws on spamming that have been published in France, we think it would be useful to summarize and clarify the situation, so that everyone can better understand their rights and duties in this area. The aim of the law is to reconcile prospecting with respect for consumers, and to define the boundary between sending prospecting emails and spam.

The various legal texts or interpretations on which we rely to define this boundary are as follows:

(1 ) CNIL “Informatique et Libertés” law of January 6, 1978
(amended by the law of January 30, 2002).
(2) Article 22 of the Loi pour la Confiance dans l’Economie Numérique (LEN or LCEN) of June 22, 2004, based on the European Directive of July 12, 2002.
(3) Clarification of the CNIL’s interpretation of the LEN at the meeting of February 17, 2005.

There are two basic rules for sending prospecting emails in France:

–Opt-in, which authorizes the sending of prospecting emails if and only if the recipient has consented to receive them, if the sending organization clearly displays its identity and if the recipient has the option of unsubscribing.
– Theopt-out, which authorizes the sending of prospecting emails on condition that the recipient can easily unsubscribe at no cost.

Under French law, the application of these two rules varies according to the nature of the message’s recipient (private or professional).

Generally speaking, the opt-in rule prevails. Opting-out is tolerated when a commercial relationship exists with the recipient and for the promotion of products or services similar to those already marketed to the interested party.

However, in the professional sector, regulations are more flexible in favor of mailing. Opt-in remains the general rule, but opt-out is also tolerated if, in the case of mailings to Prénom.Nom@societe.fr or Service@société.fr , the subject of the message relates to the Firstname.Lastname function or to the Service in question.

The table below summarizes the rules applicable to direct prospecting in France:

On the other hand, the CNIL reminds us that companies are obliged to comply with the rules relating to the protection of individuals under the CNIL’s “Informatique et libertés” law of January 6, 1978.