To send so-called commercial information to customers, you must first have their consent for such actions. We wrote about this in the article “Consent for Offer Mailing – Is It Necessary?”. Direct marketing is currently subject to several regulations, and what’s worse, the interpretation of the provisions varies depending on whether we are dealing with the GDPR regime, the Act on the Provision of Electronic Services, or telecommunications law. The relevant authorities also have different interpretations on this matter, which definitely complicates things.
Is a request for feedback considered spam and prohibited marketing?
There is a widespread belief that consent is only required for sending information that includes, for example, service offers, promotional details, or generally speaking, advertising content. Therefore, it might seem that if a customer uses our services or purchases a product, it should be permissible to ask them for feedback on the services/product without any concerns. After all, we are not encouraging them to continue the cooperation and it is solely aimed at improving our future operations. However, it turns out that the matter is not so straightforward, as illustrated by a case involving a certain customer who complained about such an action to the President of the Personal Data Protection Office (PUODO).
Customer satisfaction survey as unsolicited commercial information…
The customer made purchases in an online store and had an account there. She did not give any marketing consents in that store. After the purchase, she received an email from the seller asking for feedback on the product, which she perceived as marketing without her explicit permission. She filed a complaint with PUODO, but the office did not find any violation in this case. According to the office, while it was indeed a marketing action, it was based on the seller’s legitimate interest, which made consent unnecessary. However, the customer was not convinced by this justification and appealed the decision of PUODO to the Regional Administrative Court (WSA) in Warsaw. The court agreed with her, overturning the PUODO’s decision and sending it for reconsideration (case no. II SA/Wa 715/22).
Consent for sending commercial information and the GDPR
The President of the Personal Data Protection Office argued in his decision that since the seller bases the processing of personal data for sending a request for feedback on the legal basis of legitimate interest, obtaining consent for data processing would be redundant. The GDPR allows for marketing activities based on a legitimate interest. However, the WSA considered that in this situation, the request for feedback constituted commercial information, and its sending to the customer required their consent. The WSA stated that the Act on the Provision of Electronic Services provides specific provisions in relation to the GDPR, and therefore, according to the rules of interpretation, it takes precedence over them. It emphasized that having the legal basis for processing personal data under the GDPR for direct marketing purposes does not exempt from the requirement to obtain consent for sending commercial information electronically.
Request for feedback – direct marketing or commercial information?
As evident from the above, PUODO considered the request for feedback on a purchase as direct marketing that does not constitute commercial information, while the WSA attributed the characteristics of commercial information to such a inquiry – although the reasons for this are not entirely clear. However, we cannot assume that every feedback request requires the recipient’s consent. We must remember that the WSA’s ruling pertains to an individual case with specific factual circumstances, and a different outcome may be reached in another case.
Does this mean that the decision that was made is insignificant? Definitely not. It draws attention to an important issue of interpretation and the need to attach greater importance to the messages we send to our customers. What matters primarily is the content and purpose of the communication. Do we want to gather customer feedback to improve our future operations, or do we want to persuade the customer to return to us, with customer satisfaction surveys being just a pretext?