Unsolicited Electronic Communication on Social Medias

Didem Demirtas & Cathrin Schirin Pirzadeh-Karrami

Student thesis: Master thesis

Abstract

Social medias offer new ways for firms to practice direct marketing. Facebook is the most popular social media marketing-channel because of the new means of communication that the service offers. Direct electronic marketing practices have for a long time been subjected to legal regulation. The practice of direct electronic marketing through e-mails and SMS served as cost-effective marketing channels, which comprised the privacy of users of electronic communication services. The EU addressed the challenges with unsolicited communication through the enactment of the European Parliament and the Council’s directive 2002/58/EC on privacy and electronic communication, specifically article 13, which regulates unsolicited communication through means of distance communication. § 10 in The Danish Marketing Practises act regulates unsolicited communication through means of distance communication. There is legal uncertainty as to whether social media is covered by the scope of § 10. This thesis investigates if direct marketing messages from firms on Facebook can be covered by the ban on spam in § 10, section 1 of The Danish Marketing Practises act or whether the warrant for regulation can be found in §10, section 4-6 which applies to messages through other means of distance communication with the purpose of direct marketing, which are not comprised of section 1. The Danish state of law concerning unsolicited communication on Facebook, has been analysed and interpreted in the light of the purpose with article 13 in the Directive on privacy and electronic communication, due to the member states’ obligation to EU-conform interpretation. This thesis concludes that unsolicited communication of firms on Facebook are not covered by §10, section 1 as messages on Facebook are not sent through “a public communication network”, which is one of the criteria stated in the definition of “electronic mail”. Facebook cannot be characterized as an “electronic communication service“ pursuant to the telecommunication regulation, and is not comprised of the scope of the Directive on privacy and electronic communication. Moreover, this study concludes that the Danish legislators are restricted from upholding a broader interpretation of the term “electronic mail” because of the maximum harmonising character of the directive. The consequence of the Danish state of law is that web-based services excluded from the scope of the Directive on privacy and electronic communication are covered. Next, the study concludes that unsolicited communication on Facebook can be covered by the section 10 (1) of the MFL. 4-6. Crucial to this assessment is whether the forms of communication can form the basis for a direct inquiry. 3 The marketing analysis takes a consumer behavioural perspective to understand, which factors that generates privacy concerns. The qualitative research shows that there is a connection between the need to control one’s private sphere, which entails the right to control what inquiries they want to receive. Another finding shows that facebook is an integral part of the private sphere, as the purpose of the use is to connect to its social network, as opposed to e-mail. Finally, the interdisciplinary analysis, which is based on findings in the marketing analysis and the result of the legal analysis, scrutinises whether firm’s unsolicited communication should be regulated by an opt-in-model or an opt-out model to ensure adequate privacy in the light of the purpose with the regulation. It is considered that an opt-in-model should apply to inbox inquiries and direct posts on the facebook user’s timeline.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2019
Number of pages103
SupervisorsJesper Clement