Profiles in Email Laws: Austria’s EU Opt-In Regime

Overview: Austria’s email laws are based around the EU Directive 2002/58/EC, which requires consumer permission or opt-in except for under the following circumstances: consumer information was obtained during a sale of a good or service, and the direct marketing message is for a similar good or service. So basically, a prior relationship with the consumer must exist. Also, a clear and free opt-out mechanism and an opportunity to object to messages at the time of data collection must be provided, the sender must be identified, and the message has to be labeled an electronic advertisement.

The specific law in Austria that implements the EU directives is the TKG 2003 Telecommunications Act, specifically section 107. The government body responsible for enforcement is the Austrian Data Protection Authority. The Austrian law specifies that opt-in applies to both natural and legal persons; therefore, b2b communication must be opt-in unless it meets the other EU directive requirements. Violators of the law can be fined up to €37,000 in Austrian courts. Austria’s Data Protection Act deals with general privacy issues, and their e-Commerce Act includes sections concerning unsolicited communication and plans for a “Do Not Spam” list.

Enforcement Effects: Because the EU directive leaves it up to individual countries to define the terms- ‘preexisting relationship’ and ’similar goods and services’ and ‘natural or legal persons’, all of the European countries with individual laws tend to vary slightly. Therefore, marketers in the EU, to avoid the risk of getting in trouble in a specific country, have largely adopted opt-in only sending practices.

Relevant Resources:

2003 Telecommunications Act (translated pdf-English)

Austrian Data Protection Commission (English)

OECD Austria Page– includes Austrian goverment contact information

Anti-Spam Laws in the EU Resources from Email Marketing Reports

Email Rules in the EU Marketing Profs article

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