Greek DPA: Robinson’s list does not cover e-marketing activities

With its recent Decision Nr. 57/2007, the Greek DPA dealt with a case concerning the lack of prior consent, in a direct marketing case (phone calls to individuals).

According to the general data protection law(L.2472/1997 = Dir.95/46), any person not wishing his personal data to be processed for direct marketing purposes may subscribe to a “Robinson’s list” (the “article 13” registry). Nevertheless, according to the sectoral e-privacy law (L.3471/2006=Dir.2002/58), e-marketing controllers or processors may not just rely on the “article 13” registry, since, with the exception of e-mail messages, the data subject must have previously stated its unambiguous consent.

Therefore, the DPA decided that:

- the traditional Robinson’s list does not apply to direct marketing telephone calls,

- the company that assigns to “independent co-operators” the campaign phone calls, since it defines the means and purposes of the data processing is responsible as a “controller”, while the “co-operators” are responsible as “controllers”.

The DPA warns correctly the company to ask for a previous consent, while, in the same time, the Authority does not provide for practical guidelines to the interested parties on the implementation of the legal requirements for prior consent. One solution may be a prior communication with the data subject, in order to inquire for its wishes. Needless to say, that this practice introduces a vicious circle.

Another -perhaps more traditional- way, may be a statement when the data subjects contact the company for a commercial purpose. Then, they may fill a form, providing for their consent or not. Thus, a target group may be limited to the persons that have already contacted the company, but why not? A wider audience may get the message from the public commercial campaigns: direct marketing is a much more effective tool for the rest, the special audience that really wishes to get the direct message.

It would be better for the Greek DPA, when handling cases in issues that hasn’t presented a remarkable rate of creativity, to consult the experts on best practices. In the said case, the DPA could have asked for relevant material the “FEDMA”, which is an expert trade union recognized by the WP 29.