Good Law represents Tomorrowland in complaints procedure with regard to sending commercial emails
In November 2019 Good Law represented Tomorrowland in proceedings before the Duthc Advertising Code Committee (“the Committee”) and later, on appeal, before the Board of Appeal (“the Board”).
According to the complainant, he did not consent to the sending of emails, or that he gave consent to Tomorrowland and not (also) to DJ/producer Lost Frequencies. Also, the contact details of the sender are missing from the sent emails, according to the complainant.
The Committee accepted the last complaint (the lack of contact details). For the rest, the Committee rejected the complaint because the complainant, when creating a Tomorrowland account, ticked the box in order to receive 'other communication' as well, whereby the name Lost Frequencies is mentioned after clicking on an information symbol.
On appeal, the complainant stated that Tomorrowland, included eleven subjects with the opt-in ticked by the complainant. As a result, there is no free choice, as it is not possible to give permission for just one of the subjects. The requested consent is also insufficiently specific, because the three dots behind the explanation to the 'other communication' checkbox suggest that the list is not exhaustive.
The Board is of the opinion that consent for advertising via email must be given by means of an active action. Checking a checkbox when creating an account can be considered an active action. It is not disputed that the complainant performed this action when creating his account and thus gave Tomorrowland permission to send emails on behalf of Lost Frequencies, by means of an active action.
For the complainant, the consequence of ticking the checkbox was sufficiently clear, according to the Board. The checkbox in question lists the subjects about which one will receive emails. Sending email advertising on behalf of Lost Frequencies falls within the scope of the consent given for 'Tomorrowland and related topics'. The information behind the question mark icon makes it clear that Lost Frequencies is part of "other communication about Tomorrowland and related topics". This is not an extension of the opt-in but an explanation of what falls under 'other communication'. Now that the information under the question mark icon explicitly mentions this artist, there can be no misunderstanding about the fact that one will receive advertising via email on behalf of this artist when ticking the checkbox in question.
Finally, the Board considers that the permission has been granted freely. The fact that the complainant could not make a sub choice, is considered insufficient by the Board to judge that he did not actually give permission via a free choice to receive advertising via email on behalf of Lost Frequencies. This subject is closely related to the other subjects mentioned in the relevant checkbox, which, after all, also are related to Tomorrowland.
Find the full judgement here (only available in Dutch).