Data ProtectionPrivacy

Send To A Friend – what privacy and legal issues ?

Nowadays it is very common on most of the e-commerce and news websites to see an icon or a tool allowing users to forward the listing, a special offer or an article to a friend.  But are we sure that such practice does not face privacy and prize promotions regulatory restrictions?

Usually such functionalities allow the sender to provide his email address and the email address of the recipient (i.e. of the “friend“) together with an accompanying message.  The recipient will receive a message (stating for instance “Giulio thinks you will like this movie“) together with the webpage containing the listing, article or offer that is conveyed by the Internet Service Provider but appears to come from his friend.

And in most of the case Internet Service Providers (ISPs) are not concerned about the privacy and regulatory issues deriving from this practice.  Their view is that the user is the actual sender of the message and they should not be subject to any privacy commitment.  Likewise, they do not consider that such practive might be considered as a prize promotion.

However, on the basis of a deeper review of the matter, the conclusion might be different.

Potential privacy restrictions

ISPs actually collect and process the email address (and any other information provided by the sender) of the recipient (even if they delete the address immediately after the delivery of the message) as the definition of “data processing” involves any processing of personal data.

They perform such practice without having provided the recipient with any privacy information notice and without having obtained from him any consent to the delivery of marketing communications which consequently would entail an unlawful data processing.

And the message received by the friend seems to come from the sender (i.e. the friend recommending the article, listing, offer), but in fact it comes from the ISP and such practice would be in contrast with Section 13.4 of the E-Privacy Directive that prohibits any practice aimed at disguising or concealing the identity of the sender on whose behalf the communication is made.

The above shows that such type of promotion triggers data protection issues requiring to comply with privacy obligations.  Also, the privacy related risks are even higher if the ISP does not delete the address and the personal data of the recipient after the delivery of the message, but it continues storing such data or (in an even worse scenario) keeps on sending marketing emails to the recipient that has never provided any consent to such data processing.

Potential restrictions under prize promotions rules

Italian law provides for some of the most complex regulations on prize promotions as outlined in this post.  Those rules apply to the majority of promotions with prizes in kind, while promotions with prizes in cash are prohibited.

And the promotions falling under prize promotions regulations might include also “Send to A Friend” promotions especially if the participants need to go through complex procedures in order to gain all the prizes potentially awarded.  Indeed, the position taken in some instances by the authority in charge of monitoring promotions in Italy is that they are “promotions of skill” since the participant has to be enough skilled to convince his friends to perform a specific activity.

The consequence of the above is that stringent formalities shall be complied with whose breach is sanctioned with fines up to € 500K.  As mentioned in this post, the restrictions might be waived in some cases, but this is not going to be an easy battle.

Conclusions

Unlike some other foreign Privacy Authorities, the Italian DPA unfortunately has never issued any guidelines on the privacy issues of such promotions, but in my view there are measures aimed at considerably reduce the risks that the unlawful conducts are challenged by users under a data protection point of view.  Likewise some safeguards shall be put in place to reduce the risk that the promotion falls under prize promotion regulations.

Privacy and prize promotion issues are often underestimated and if you want to discuss the above, feel free to contact me, Giulio Coraggio.  And follow me on TwitterGoogle+ and become one of my friends on LinkedIn.

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Giulio Coraggio

I am the head of the Italian Technology sector and the global head of the IoT and Gaming and Gambling groups at the world-leading law firm DLA Piper. IoT and artificial intelligence influencer and FinTech and blockchain expert, finding solutions to what's next for our clients' success.

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