Advertising Law: How to Call, Email, and SMS Without Spam / ITech content

Contents:

• What is advertising and what are the requirements for it
• How to properly obtain consent from subscribers and what to do with it later
• What happens if you break the law and send advertising without the subscriber's consent

Director of the Legal Department and Senior Legal Advisor at RTM Group. He has worked in the legal field since 2003, which allows him to effectively resolve a wide range of legal issues and provide a high level of legal support for businesses.

For five years, I was engaged in the examination of regulatory legal acts in the field of municipal services. In addition, for twelve years, I managed legal departments at industrial enterprises. My experience includes a deep understanding of legislation and the practical application of legal norms in industry.

RTM Group offers a wide range of services in the field of IT and digital technologies. Our team of experts provides high-quality business solutions, including software development, web design, digital marketing, and project management. We strive to help our clients achieve their goals using modern technologies and innovative approaches. Our mission is to create effective and reliable solutions that facilitate the growth and development of your business. Contact RTM Group for a consultation and learn how we can help you optimize your processes and increase profits.

Illegal SMS messaging carries a fine of up to 500,000 rubles for each message sent. Mailing lists such as letters, SMS, and phone calls are considered advertising, and their use must comply with the law. It is important to understand the rules to avoid serious consequences and fines. Advertising legislation requires the recipient's consent to receive messages, as well as compliance with other rules governing advertising communications. Compliance with these rules will help protect your business from legal risks and negative consequences.

• What is advertising and what should it be from a legal point of view;
• What should be the subscriber's consent to receive advertising;
• What happens if advertising is sent without prior consent.

What is advertising and what are the requirements for it?

According to Federal Law No. 38-FZ, advertising is defined as information that is distributed by any means and in any form, using various means. It is addressed to an indefinite number of persons and is aimed at drawing attention to the advertised object. The primary goal of advertising is to generate or maintain interest in a product or service, as well as to promote it in the market. A proper understanding of this definition allows for the effective use of advertising tools to achieve business goals and increase competitiveness.

According to the law, advertising must be honest and truthful. Comparing products with competitors' products or claiming 50% discounts when such discounts do not actually exist is prohibited. Compliance with these standards ensures consumer protection and promotes fair competition in the market.

Advertising is present in all forms of media consumption: it can be heard on the radio, seen on television and YouTube, and also found on social media and outdoor banners. Calls and SMS messages are also part of the advertising strategy, as they are aimed at an unspecified audience and help draw attention to the promoted product or service. According to the law, email newsletters, phone calls, and SMS messages are classified as "advertising distributed over telecommunications networks," which underscores their importance in modern marketing.

Advertising placed on telecommunication networks is subject to the general principles of good faith and reliability. In addition to these principles, special requirements set forth by Federal Laws No. 38-FZ and No. 126-FZ apply. These laws regulate the distribution of advertising information and ensure consumer protection, as well as guarantee that advertising is accurate and not misleading.

• Advertising must be delivered with human intervention—automated mailings and automated calls are prohibited.
• Products may only be advertised with the subscriber's prior consent to receive advertising.
• Using customer phone numbers or email addresses is permitted only if you have received their consent to the processing of personal data.

Working with customer data requires the preparation of additional documents and notification to Roskomnadzor. For detailed information on this process, please refer to our guide to the processing of personal data.

For effective advertising delivery, it is important to comply with privacy and data protection rules. The use of user data from social networks, the purchase of phone number databases, and the extraction of information from CRM systems are prohibited. This rule applies even in cases where phone numbers or email addresses are publicly available or were provided for specific purposes, such as purchasing goods online. Compliance with these standards not only protects users' rights but also helps build trust with customers, which in turn has a positive impact on the company's reputation and the effectiveness of advertising campaigns.

If a customer has placed an order and provided a phone number, their consent must be obtained before contacting them with offers of goods and services. Sending promotional messages without prior consent is prohibited. It is important to comply with ethical standards and legal requirements to avoid negative consequences and maintain customer trust.

A ban on automated mailings applies if a company sends spam. The use of trigger chains in email marketing services such as SendPulse is possible only with the user's consent to receive such messages. A trigger email is created automatically, but is addressed to a specific recipient and sent in response to their actions. This allows us to keep content relevant and increase user engagement, while ensuring compliance with personal data protection laws.

How to properly obtain consent from subscribers and what to do with it later

Consent to the processing of personal data and the form of its provision are regulated by Federal Law No. 152-FZ "On Personal Data". To comply with the law, it is necessary to:

• draw up documents - a privacy policy, rules for working with personal data, consent to processing;
• notify Roskomnadzor that you intend to process personal data;
• obtain consent from users in writing, using a checkbox or a button by clicking which they agree to the processing of data.

Consent to receive advertising materials is a complex aspect, since the legislation does not specify specific requirements for its form. This means that consent can be expressed in various ways. It's important to be able to identify the subscriber and confirm that they have voluntarily consented to receive advertising from your company. It's important to note that including consent in the terms of a civil contract is unacceptable; it must be obtained separately. Properly formalizing consent will help avoid legal issues and increase customer trust in your brand.

Consent to data processing can be obtained when a subscriber initiates contact with the company. This could be through a call to customer support, filling out a form at a point of sale, or visiting a website. For example, a pop-up window could be embedded on the website inviting the subscriber to subscribe to a newsletter. This window should contain a link to the consent form and a checkbox confirming the subscriber's desire to receive information. This approach not only complies with legal requirements, but also helps increase customer trust in the company.

The consent form must include the following key elements:

1. Full name of the organization or person providing consent.
2. The purposes for which the information provided will be used.
3. Specific data that will be collected and processed.
4. The rights of the person providing consent, including the right to withdraw consent at any time.
5. The duration of consent and the conditions for its renewal.
6. Information about possible third parties to whom the data may be transferred.
7. Contact details for additional information and questions.

Compliance with these requirements will help ensure transparency and the protection of the rights of data subjects, which is an important aspect in accordance with the current standards of personal data protection legislation.

• clarification that it is provided to a specific person - it would be an error to write "and other third parties" or "RTM Group";
• description of how you can later unsubscribe from the mailing list: for example, contact the company or sales office by phone or email and Revoke consent.

This information should be included directly in the questionnaires and forms associated with the checkbox. If consent was obtained during a telephone conversation, be sure to state it verbally.

Customer consents must be stored for at least one year. This can be done in various ways: on paper, in corporate cloud storage, or in a CRM system. It is important to be able to confirm consent in the event of a dispute. It is necessary to ensure that there is a clear record: the consent text and the personal data the client provided voluntarily. This approach will help protect your business and comply with data protection laws.

How to attract customers who have not yet agreed to receive advertising? You can send them a message asking for permission to receive information about your services. In the text of the message, try to clearly explain what value they will get from the subscription and how often they will receive updates. For example, you can point out special offers, promotions, or useful tips to help them make a choice. It's important to emphasize that you respect their time and preferences, and that they can unsubscribe at any time. This approach will increase the chances of a positive response and help you build trust with potential customers.

Hello! Welcome to the RTM store, which is open 24/7 for your convenience. We offer a wide range of products at attractive prices. We regularly offer discounts and special offers to help you save. If you want to stay informed about our promotions and agree to the processing of your personal data, please send a message with the text "I agree."

Sending such a message is illegal. There is no guarantee that the recipient will not file a complaint against you. However, even if this happens, you will always have the opportunity to explain that sending the notification is intended to obtain consent. In most cases, this will only result in a warning.

An invitation to receive something for free may be illegal. If a message is sent to an unspecified group of people, it is classified as advertising, since the recipients cannot be identified or determined. In the case of targeted mailings, where the recipients' identities can be determined, offering a free offer is permissible, but only with their consent to the processing of their personal data. This is important for compliance with personal data protection laws and the prevention of violations related to inappropriate advertising.

What happens if you break the law and send an advertisement without the subscriber's consent?

The Federal Antimonopoly Service (FAS) and Roskomnadzor (the Federal Service for Supervision of Communications, Information Technology and Mass Media) oversee compliance with advertising and communications legislation. If a client who receives an advertising mailing files a complaint, the FAS has the right to issue an order to cease the illegal activity and impose fines. It's important to remember that complying with advertising laws not only protects you from fines but also helps build a positive image for your company.

• for violating personal data laws—up to 20,000 rubles for individual entrepreneurs and up to 18 million rubles for legal entities;
• for violating advertising laws—up to 20,000 rubles for officials and up to 500,000 rubles for legal entities.

If a dispute arises, you will need to prove that you have received the subscriber's consent to send advertising materials. If you successfully prove this fact, you will avoid orders and fines. This underscores the importance of complying with advertising and data protection laws. Ensure you have clear documentation confirming your customers' consent to minimize risks and protect your business.

In 2016, the Federal Antimonopoly Service (FAS) imposed a fine of 1 million rubles on MegaFon telecom operators for two cases of illegal SMS distribution. In September 2021, the Federal Antimonopoly Service (FAS) reviewed a complaint from a user who, after placing an order on the website, did not consent to receive advertising materials but still received messages advertising Clinique cosmetics. In this situation, the company faces a fine of up to 500,000 rubles. These precedents highlight the importance of complying with consumer protection and personal data protection laws in advertising.

Advertising agencies do not independently monitor compliance with advertising laws. Fines can only be imposed if a dissatisfied customer files a complaint. The Federal Antimonopoly Service (FAS) decision can be appealed in court; however, if you do not have the subscriber's consent to send advertising materials, the fine will remain in effect. This underscores the importance of obtaining permission before conducting advertising campaigns. Proper compliance with the law will help avoid negative consequences and preserve the company's reputation.

To avoid fines, it is important to obtain subscribers' consent to send advertising materials and the processing of their personal data. It's important to remember that consent forms must comply with certain rules. It's crucial to ensure transparency and clearly inform users of the purposes for which their data will be processed, as well as the length of time the information will be stored. Users must be able to freely revoke their consent at any time. It's also important to remember that consent must be obtained actively, not implied. Compliance with these rules will not only help avoid legal consequences, but also increase customer confidence in your brand.

• The recipient can be identified.
• The form confirms the client's will to receive advertising and other information from a specific distributor.
• The recipient has the opportunity to unsubscribe from such mailings.