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Does Direct Marketing Require Specific Consent?

Does Direct Marketing Require Specific Consent?

Hungary
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The Hungarian data protection authority (NAIH) fined Magyar Éremkibocsátó Kft, a limited liability company engaged in the numismatic business, HUF 30m (approx. EUR 73,000) for unlawful direct marketing activities.

A key message of the decision is that the data subject's consent to data processing may not be "smuggled into" statements that do not explicitly provide for it.

In the company's letter sent to its customers by regular post, customers received an order form which, if they signed it (i.e. by placing an order) was automatically considered by the company as consent to the processing of the customer's data for the purpose of direct marketing. In other words, it was not possible to place an order without the data subject's consent to direct marketing data processing.

The Authority's decision confirms that personal data may only be processed on the basis of consent if the data subject gives their consent to the processing of their data genuinely and explicitly. Thus, consent is invalid and personal data may not be processed if the consent statement is "provided" together with another statement without the data subject's explicit consent to the processing.

This common practice of data controllers treating event registrations or purchases on a website as the granting of consent is flawed and should definitely be reviewed by clients. The solution may be to obtain consent through active engagement or to choose another legal basis for such direct marketing data processing.

By Aron Hegyi, Associate, Schoenherr

Hungary Knowledge Partner

Nagy és Trócsányi was founded in 1991, turned into limited professional partnership (in Hungarian: ügyvédi iroda) in 1992, with the aim of offering sophisticated legal services. The firm continues to seek excellence in a comprehensive and modern practice, which spans international commercial and business law. 

The firm’s lawyers provide clients with advice and representation in an active, thoughtful and ethical manner, with a real understanding of clients‘ business needs and the markets in which they operate.

The firm is one of the largest home-grown independent law firms in Hungary. Currently Nagy és Trócsányi has 26 lawyers out of which there are 8 active partners. All partners are equity partners.

Nagy és Trócsányi is a legal entity and registered with the Budapest Bar Association. All lawyers of the Budapest office are either members of, or registered as clerks with, the Budapest Bar Association. Several of the firm’s lawyers are admitted attorneys or registered as legal consultants in New York.

The firm advises a broad range of clients, including numerous multinational corporations. 

Our activity focuses on the following practice areas: M&A, company law, litigation and dispute resolution, real estate law, banking and finance, project financing, insolvency and restructuring, venture capital investment, taxation, competition, utilities, energy, media and telecommunication.

Nagy és Trócsányi is the exclusive member firm in Hungary for Lex Mundi – the world’s leading network of independent law firms with in-depth experience in 100+countries worldwide.

The firm advises a broad range of clients, including numerous multinational corporations. Among our key clients are: OTP Bank, Sberbank, Erste Bank, Scania, KS ORKA, Mannvit, DAF Trucks, Booking.com, Museum of Fine Arts of Budapest, Hungarian Post Pte Ltd, Hiventures, Strabag, CPI Hungary, Givaudan, Marks & Spencer, CBA.

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