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A recent decision issued by the Italian Competition Authority (the AGCM) against an Italian telecom operator performing marketing communications without the prior consent of relative customers raised a relevant topic of discussion. Interestingly the conduct was not challenged because its lack of the compliance with privacy laws, but the AGCM is the Italian authority having jurisdiction on the so called “unfair commercial practices” i.e. conducts contrary to the principles of professional diligence able to distort the economic behavior of consumers.
The AGCM stressed the need not only to require the prior consent from consumers to the delivery of marketing communications, but also to provide them with clear means to withdraw such consent at any time and at their mere discretion. This matter should not be underestimated by operators because:
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Italian law prescribes fines up to € 500,000 for unfair commercial practices; and
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unlike data protection laws that at least with reference to EU entities oblige the company to comply only with the data protection laws of their country of establishment, Italian unfair commercial practices regulations are applicable to any company directing marketing or advertising practices to Italian consumers despite of the country where they are based.
Also, even if marketing communications are performed with the prior consent of the relative consumer, they can trigger an unfair conduct in case of persistent and unwanted solicitations by telephone, fax, e-mail or other remote media.
Do you want to discuss about the above? Feel free to contact me, Giulio Coraggio.
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