Legal Issues of Online Ads: Digital Ad Laws Part I

The day-by-day duties of our business we abide by, play, in many occasions, a larger part overall in what is thought of from initial glance. Without a doubt, being persistent and forming habits is important when establishing an online presence, and it plays an important part in defining our accountability among other vendors, and most importantly, our customers. That being said, I’d like to touch base on how publicity, and digital publicity in general, plays a huge part in the online spectrum for vendors, and more simply, what we are used to seeing as consumers ourselves.

It seems simplistic, but really, who has actually sat down to analyze and pull apart this labor intensive task, I ask: “Is the disclosure of commercial information worth anything?” Let’s pick apart the issue and learn how these things are not always what they seem.

If we take a look back at how this legislation affects the public exercise as whole, we immediately find the following norms:

• General Publicity Law
• General Laws in Defense of the Consumer and User
• The Organic Law of Personal Data Protection (although you may not believe it)

These norms can affect both offline-and-online publicity, but for example, the employment of technology (it’s no longer a new thing, this is the now) derives from the notion that, in general, on-line publicity has brought it the main source of norms we see presented specifically in digital communication materials, but in previous norms we forget to add these others regarding digital ads law:

• Law of Information Society Services and Electronic Commerce
• General Telecommunications Law

Seemed simple, right? Well, not so much.  Obviously, this is a very extensive subject that this article does not expect to cover entirely, but if we are going to clear some issues that may be of interest and answer some questions which simulate a general campaign of e -mail marketing (whether inbound or display) it should be considered and what we do not reach now, we will attempt to touch cover ahead.

WHO CAN I SEND ADVERTISING? OR OTHERWISE, WHAT DATABASES CAN I USE FOR COMMERCIAL OR ADVERTISING PURPOSE?

The answer is that strictly, with the Personal Data Protection rules presiding over all those involved in carrying out advertising, commercial prospecting, distance selling or any similar activity (including selling our own products and / or services), or those of a third party, we will only be able to use personal data in two cases:

1. When the data is in a source accessible to the public (I will describe below what is considered by this)
2. When the data has been provided by the data subject, likely through their profession, or has been been obtained by means of his informed consent.
   No other assumption is valid. Let’s analyze how to build a database for our marketing and advertising actions from the first option.

WHAT IS CONSIDERED AS A SOURCE OF PUBLIC ACCESS?

The data whose research and access can be obtained by anyone. Data that is not prevented by a standard and without greater exigency, that could be in certain cases where a payment is required for access. That said, any data that appears on the Internet can be considered a source of public access, however, it is not. The LOPD is responsible for assessing, in a closed and exclusive manner (“numerus clausus” in legal jargon), those possible sources of public access that can nourish our advertising database. They are:

1. The promotional census.

Which is intriguing, since this census today does not exist and of course we shouldn’t confuse it with the electoral census. The promotional census technically is a list drawn up by the National Statistical Institute based on the data already included in the electoral census, with the appropriate exclusions for those who do not want to be in it, and its creation would be of vital importance for any company that dedicates itself to marketing.

2. Electronic communications service guides (white pages) or telephone directories.

This is a very delicate assumption, since on the one hand, the repertoires have an expiration date, that is to say, the repertoire of five years ago ceased to be a source accessible to the public annually and, on the other hand, any additional data that we include distorts your condition. On the other hand, there is the right to exclude us from these telephone repertoires and from the treatments for advertising purposes, which means that before any commercial action, we should consult if, on a case by case basis, that right is exercised.

3. Lists of persons belonging to professional groups

The lists of persons belonging to professional groups, with the limitation of their strict professional data and in the same way as the telephone directories and repertoires, have expiration dates in each of their editions and the possibility of exclusion for uses with advertising purposes.

4. Official diaries and bulletins.

Here we have the Official State Gazette, the provincial and autonomous gazettes and the Official Gazette of the Mercantile Registry, so it’s possible to process the data that appears there for advertising purposes. But take heed: the data that appears in the Public Registries, both the Commercial Registry and the Registry of the Property do not have the consideration of source accessible to the public. This is the reason why the treatment necessarily can only enable the consent of the interested party. Nor are the edicts of courts and tribunals published on bulletin boards considered to be a public source.

5. The media.

Here we consult of the big questions: Is the Internet a means of communication ? Technically, the answer is that no, for purposes of data protection it is not a means, it is a communication channel, such as the phone, or e-mail. Particularly, I do not agree, at least in this day and age, with the development that has occurred, but the norm is what is considered sources accessible to the public, everything that is spread through the press, radio and television, be these conventional or digital, except scientific journals.