Suppose a nonprofit wishes to contact some EU-based employees of an EU-based company in an effort to get that company to use a free service it is offering, and is considering doing so via LinkedIn. Per Article 13 of the ePrivacy Directive - i.e. Directive 2002/58/EC:
- The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.
And, per Article 2(h), 'electronic mail' would include social media messages such as LinkedIn messages:
"electronic mail" means any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient's terminal equipment until it is collected by the recipient
'Direct marketing' is not defined in the ePrivacy Directive, but the UK Information Commissioner's Office gives the following guidance (my emphasis):
Direct marketing is defined in section 122(5) of the Data Protection Act 2018 as:
“the communication (by whatever means) of advertising or marketing material which is directed to particular individuals”.
This covers all advertising or promotional material, including that promoting the aims or ideals of not-for-profit organisations – for example, it covers a charity or political party campaigning for support or funds. The marketing must be directed to particular individuals. In practice, all relevant electronic messages (eg calls, faxes, texts and emails) are directed to someone, so they fall within this definition.
Genuine market research does not count as direct marketing. However, if a survey includes any promotional material or collects details to use in future marketing campaigns, the survey is for direct marketing purposes and the rules apply.
From this, it seems that:
- (a) Prior consent would be required to send messages to specific individuals to promote the nonprofit's offering, including via LinkedIn.
- (b) A simple message asking if a person would be interested in learning more, or otherwise trying to obtain their consent, would itself be considered direct marketing, so itself require prior consent...
If this is correct, how could the nonprofit legally contact the relevant stakeholders? I am confused about what should be done in this case. It seems very strange that a person at a company who might be interested in using the nonprofit's services cannot even be sent a one-line opt-in request to receive more details on LinkedIn. Any thoughts gratefully appreciated.
Some solutions I have considered:
- Take advantage of the difference between 'corporate subscribers' and 'individual subscribers' in the UK's implementation of the ePrivacy Directive (PECR), which allows direct marketing to employees' corporate email addresses. Only applies to the UK and probably does not apply to LinkedIn.
- Phone the individual concerned to obtain consent prior to sending a message. Requires knowing the phone number and is time-consuming.
- Contact the company's official email address (e.g. [email protected]) instead. Impractical as reply rate is very low from such addresses.