Factsheet: What are the rules to respect when conducting commercial prospecting?
Commercial prospecting is a necessary and effective way of developing a customer base.
However, it must be carried out with due respect for the rights of those contacted, and in compliance with regulations governing personal data. The implementation and use of a CRM file are therefore subject to rules that protect the individuals concerned, and contacting these people to offer them products or services requires a few precautions.
In this article, AGN Avocats examines the rules applicable in this area.
Do I need to obtain the consent of the person concerned?
The consent of the person concerned is not always required for commercial solicitation. In fact, consent is only required if the commercial canvassing is carried out by telephone and to a personal address. Furthermore, consent will not be required if the commercial solicitation is made to a person who is already a customer of the company, for products or services similar to those previously ordered.
The consent of the person concerned is therefore not required, for example, for commercial solicitations made by SMS or using a business e-mail address.
If the consent of the person concerned is not required, the commercial solicitation may be carried out simply by informing the person concerned, subject to giving him or her the possibility of objecting to this commercial solicitation by means of an opt-out system.
How do I obtain the consent of the person concerned?
In accordance with the requirements of the French Post and Telecommunications Code, the consent of the person concerned must be free, informed and specific. In order to meet these three requirements, the data subject must be informed of how his or her data will be used. Furthermore, consent cannot be a condition for signing a contract, nor can it be given in the context of accepting general sales conditions. It is therefore advisable to provide a specific collection form for commercial prospecting, including an appropriate opt-in mechanism.
What data can be collected and used for commercial prospecting purposes?
In accordance with the principle of data minimization, only the data required to carry out the commercial prospecting operation may be processed. For example, the collection of a person’s postal address is not authorized if commercial prospecting is carried out solely by telephone or electronic means.
What means can be used to contact prospects?
Commercial canvassing can be carried out by any means (telephone, e-mail, post), and regulations do not specifically prohibit any particular method of commercial canvassing. On the other hand, as mentioned above, the regulatory requirements are more stringent when it comes to electronic prospecting.
How long can prospects’ data be kept?
Data collected for commercial prospecting purposes can be kept for three years from the last exchange with the person concerned. It is therefore advisable to regularly update any CRM file in order to delete the personal data it includes after this period.
Can the data subject ask for his or her data to be updated or deleted?
The data subject may contact the data controller at any time and request that his or her data be updated or deleted. This point must be made at the time the data is collected, in the information notices brought to the attention of the data subject, which must identify the data controller, the data subject’s rights and the means by which they can be exercised.
Can customer data be resold or purchased?
Personal data may only be transferred to a third party in compliance with the constraints described above. While this transfer is not prohibited in principle, it can only be carried out if the person concerned has given his or her consent, and if he or she is in a position to object to the use of his or her data for commercial prospecting purposes.
Our lawyers are available to answer all your questions and advise you. Our meetings can be held face-to-face or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Intellectual Property Department
09 72 34 24 72