Email and SMS marketing in Denmark: consent, customers, opt-out

Advertising by email and SMS needs prior consent in Denmark, whether or not the person is on the Robinson list. The exception is your own customers who gave you their address in a purchase: you may advertise your own similar products to them if they can easily opt out. The Robinson list does not cover email and SMS.

The main rule: consent first

Section 10(1) of the Marketing Practices Act bans sending advertising by electronic mail, or by automated calls, to anyone who has not given consent in advance (retsinformation.dk). Electronic mail is not only email. The Ombudsman also counts SMS, chat messages, social media notifications and push messages from apps (Consumer Ombudsman).

The rule applies to "anyone", so also to businesses. There is no B2B exception for email.

What a consent must meet

• It must be given before the first message. You can't ask for consent by sending an email or SMS that invites people to a newsletter.
• It must be clear what the person agrees to: who is writing, about which products, and in which channel.
• It can't be a pre-ticked box.
• The person must know they can withdraw it, and withdrawing must be easy and free (section 10(1)).
• You must be able to document it. The Ombudsman recommends keeping the documentation as long as the consent is used, and for two years after last use (guidance).
• Consent that isn't used probably lapses after one year.
• Children under 13 cannot consent to electronic marketing without a parent's consent.

The exception for your own customers

If you got the customer's electronic address in connection with a sale, you may advertise your own similar products without new consent (section 10(2)). All three conditions must be met:

1. The address comes from a purchase. Not from a competition or a request for an offer.
2. The advertising is for your own similar products. The same kind of product the customer bought. The Ombudsman reads this narrowly.
3. The customer can easily and free of charge opt out, both when the address was given and in every message.

The Ombudsman has, for example, ruled that a company could not send SMS and email about its new app to existing customers without consent (Consumer Ombudsman). Pure service messages about the customer's agreement, for example a change of address, are not advertising.

What each message must contain

Every advertising email must (section 10(3)):

• be clearly identifiable as advertising,
• show who sends it,
• make the conditions for offers and competitions easy to find,
• have an address where the recipient can have the messages stopped.

Where does the Robinson list fit?

It doesn't. The Robinson list covers letters with a name and address and the few lawful sales calls. It gives no extra protection against email and SMS, because they already need consent (Consumer Ombudsman).

If a person on the Robinson list has given you consent to email, you may write. But consent to email is not consent to call. If you also want to call or send a letter to the same person, the rules for that channel apply.

What does a mistake cost?

For breaches from 1 January 2022, the fine is DKK 20,000 for up to 30 messages in a first-time case, and it rises with the number of messages. In 2023 a web shop paid DKK 20,000 for one newsletter to a customer who had been signed up automatically (Consumer Ombudsman).

Questions and answers

May we send an SMS with an offer after a phone call?

Only if the person consented to SMS, or the exception for your own customers fits. An SMS confirming an agreement is not advertising.

May we write to a company address like info@?

Advertising needs consent to businesses too. If what you write is not advertising, the ban does not apply.

Does a consent we bought with a lead list count?

Only if it names your company and the channel, and you can document it. It is your responsibility, not the supplier's. See How to check a Danish lead list.

How Robinsontjek helps

Robinsontjek does not help with email consents. But if you also send letters with a name or call about exempt products, we check those lists against the Robinson list before they are used, and you get a check receipt.

Write to us, or see how a check works.