Italy - Direct MarketingItaly - Direct Marketing
The EU has yet to adopt legislation harmonizing the direct-selling of consumer products. However, there is a wide-range of EU legislation that impacts the direct marketing sector. Compliance requirements are stiffest for marketing and sales to private consumers. Companies need to focus, in particular, on the clarity and completeness of the information they provide to consumers prior to purchase and on their approaches to collecting and using customer data. The following gives a brief overview of the most important provisions flowing from EU-wide rules on distance-selling and on-line commerce. In addition, it is important for exporters relying on a direct-selling business model to ensure they comply with member state requirements.
The Italian data protection authority (DPA) “Il Garante della Privacy” oversees direct marketing in Italy, which has stricter rules than many other countries. Promotional offers often require the prior consent of the recipient in writing, with a clear way to opt out. Likewise, prior consent is required for profiling purposes or to transfer personal data to third parties. The DPA grants an exception for companies sending promotional emails to customers who have purchased similar goods or services. According to the DPA’s guidelines, even if personal data is available on the Internet, companies may not send automated promotional messages. Companies and firms may send promotional messages to their followers on social media as long as their followers have given consent to receiving promotional messages.
Processing Customer Data
The EU has strict laws governing the protection of personal data, including the use of such data in the context of direct marketing activities. For more information on these rules, please see the Data Privacy section above.
Distance Selling Rules
In 2011, the EU overhauled its consumer protection legislation and merged several existing rules into a single rulebook - “the Consumer Rights Directive”. The provisions of this Directive have been in force since June 13, 2014. The Directive contains provisions on core information to be provided by traders prior to the conclusion of consumer contracts. It also regulates the right of withdrawal, includes rules on the costs for the use of means of payment and bans pre-ticked boxes.
Alternative Dispute Resolution
In 2013, the EU adopted rules on Alternative Dispute Resolution which provide consumers the right to turn to quality alternative dispute resolution entities for all types of contractual disputes including purchases made online or offline, domestically or across borders. A specific Online Dispute Resolution Regulation, operational in January 2016, sets up an EU-wide online platform to handle consumer disputes that arise from online transactions.
Italy is taking steps to encourage the broader use of alternative dispute resolution (ADR) as a means to resolve civil disputes, with 2016 seeing the highest recorded number of settlements reached through court-supported ADR. The average time to settle a case through mediation in Italy was 115 days, compared to an average of 882 days to receive a judgment from the court of first instance. The most commonly mediated matters involve bank contracts and property disputes. While pre-filing ADR is “mandatory” in cases involving certain types of cases (including property, inheritance disputes, lease, insurance cases, banking and financial contracts), there are no penalties enforced for non-participation or an unwillingness to participate in good faith to settle the claim.
The Chambers of Commerce in Milan and Florence also strongly support the use of ADR and have established mediation centers and rules of procedure. Italy is a signatory to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards. It is worth noting that mediation in Italy tends to take place before the suit is filed, rather than afterwards, as is more common in the United States.
New Legislation
In December 2015 the European Commission released a package of two draft Directives, respectively on “contracts for the supply of digital content” and another on “contracts for the online and other distance sales of goods.” This package addresses the legal fragmentation and lack of clear contractual rights for faulty digital content and distance selling across the EU. The package would only address B2C contracts, although its draft scope uses a very broad definition of both digital content (including music, movies, apps, games, films, social media, cloud storage services, broadcasts of sport events, visual modelling files for 3D printing) and distance selling goods so as to cover Internet of Things (such as connected households’ appliances and toys). It could also apply to transactions whether in the context of a monetary transaction or in exchange of (personal) consumer data. Healthcare, gambling and financial services are excluded from the proposal.
The package is currently under scrutiny at both the European Parliament and Council. Its adoption is expected in the course of 2018.
Key Links:
Consumer Affairs Homepage
Consumer Rights
Distance Selling of Financial Services
Financial services are the subject of a separate directive that came into force in June 2002 (2002/65/EC). This piece of legislation amended three prior existing Directives and is designed to ensure that consumers are appropriately protected with respect to financial transactions taking place where the consumer and the provider are not face-to-face. In addition to prohibiting certain abusive marketing practices, the Directive establishes criteria for the presentation of contract information. Given the special nature of financial markets, specifics are also laid out for contractual withdrawal.
Key Link: Distance Marketing
Direct Marketing over the Internet
The e-commerce Directive (2000/31/EC) imposes certain specific requirements connected to the direct marketing business. Promotional offers must not mislead customers and the terms that must be met to qualify for them have to be clear and easily accessible. The Directive stipulates that marketing e-mails must be identified as such to the recipient and requires that companies targeting customers on-line must regularly consult national opt-out registers where they exist. When an order is placed, the service provider must acknowledge receipt quickly and by electronic means, although the Directive does not attribute any legal effect to the placing of an order or its acknowledgment: this is a matter for national law. Vendors of electronically supplied services (such as software, which the EU considers a service and not a good) must also collect value added tax (see Electronic Commerce section below). The European Commission has performed a stakeholder’s consultation and is currently assessing the opportunity to propose a revision of the e-commerce Directive. See Data Privacy Section above.
Key Link: Direct Marketing over the Internet
Prepared by our U.S. Embassies abroad. With its network of 108 offices across the United States and in more than 75 countries, the U.S. Commercial Service of the U.S. Department of Commerce utilizes its global presence and international marketing expertise to help U.S. companies sell their products and services worldwide. Locate the U.S. Commercial Service trade specialist in the U.S. nearest you by visiting http://export.gov/usoffices.
The Italian data protection authority (DPA) “Il Garante della Privacy” oversees direct marketing in Italy, which has stricter rules than many other countries. Promotional offers often require the prior consent of the recipient in writing, with a clear way to opt out. Likewise, prior consent is required for profiling purposes or to transfer personal data to third parties. The DPA grants an exception for companies sending promotional emails to customers who have purchased similar goods or services. According to the DPA’s guidelines, even if personal data is available on the Internet, companies may not send automated promotional messages. Companies and firms may send promotional messages to their followers on social media as long as their followers have given consent to receiving promotional messages.
Processing Customer Data
The EU has strict laws governing the protection of personal data, including the use of such data in the context of direct marketing activities. For more information on these rules, please see the Data Privacy section above.
Distance Selling Rules
In 2011, the EU overhauled its consumer protection legislation and merged several existing rules into a single rulebook - “the Consumer Rights Directive”. The provisions of this Directive have been in force since June 13, 2014. The Directive contains provisions on core information to be provided by traders prior to the conclusion of consumer contracts. It also regulates the right of withdrawal, includes rules on the costs for the use of means of payment and bans pre-ticked boxes.
Alternative Dispute Resolution
In 2013, the EU adopted rules on Alternative Dispute Resolution which provide consumers the right to turn to quality alternative dispute resolution entities for all types of contractual disputes including purchases made online or offline, domestically or across borders. A specific Online Dispute Resolution Regulation, operational in January 2016, sets up an EU-wide online platform to handle consumer disputes that arise from online transactions.
Italy is taking steps to encourage the broader use of alternative dispute resolution (ADR) as a means to resolve civil disputes, with 2016 seeing the highest recorded number of settlements reached through court-supported ADR. The average time to settle a case through mediation in Italy was 115 days, compared to an average of 882 days to receive a judgment from the court of first instance. The most commonly mediated matters involve bank contracts and property disputes. While pre-filing ADR is “mandatory” in cases involving certain types of cases (including property, inheritance disputes, lease, insurance cases, banking and financial contracts), there are no penalties enforced for non-participation or an unwillingness to participate in good faith to settle the claim.
The Chambers of Commerce in Milan and Florence also strongly support the use of ADR and have established mediation centers and rules of procedure. Italy is a signatory to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards. It is worth noting that mediation in Italy tends to take place before the suit is filed, rather than afterwards, as is more common in the United States.
New Legislation
In December 2015 the European Commission released a package of two draft Directives, respectively on “contracts for the supply of digital content” and another on “contracts for the online and other distance sales of goods.” This package addresses the legal fragmentation and lack of clear contractual rights for faulty digital content and distance selling across the EU. The package would only address B2C contracts, although its draft scope uses a very broad definition of both digital content (including music, movies, apps, games, films, social media, cloud storage services, broadcasts of sport events, visual modelling files for 3D printing) and distance selling goods so as to cover Internet of Things (such as connected households’ appliances and toys). It could also apply to transactions whether in the context of a monetary transaction or in exchange of (personal) consumer data. Healthcare, gambling and financial services are excluded from the proposal.
The package is currently under scrutiny at both the European Parliament and Council. Its adoption is expected in the course of 2018.
Key Links:
Consumer Affairs Homepage
Consumer Rights
Distance Selling of Financial Services
Financial services are the subject of a separate directive that came into force in June 2002 (2002/65/EC). This piece of legislation amended three prior existing Directives and is designed to ensure that consumers are appropriately protected with respect to financial transactions taking place where the consumer and the provider are not face-to-face. In addition to prohibiting certain abusive marketing practices, the Directive establishes criteria for the presentation of contract information. Given the special nature of financial markets, specifics are also laid out for contractual withdrawal.
Key Link: Distance Marketing
Direct Marketing over the Internet
The e-commerce Directive (2000/31/EC) imposes certain specific requirements connected to the direct marketing business. Promotional offers must not mislead customers and the terms that must be met to qualify for them have to be clear and easily accessible. The Directive stipulates that marketing e-mails must be identified as such to the recipient and requires that companies targeting customers on-line must regularly consult national opt-out registers where they exist. When an order is placed, the service provider must acknowledge receipt quickly and by electronic means, although the Directive does not attribute any legal effect to the placing of an order or its acknowledgment: this is a matter for national law. Vendors of electronically supplied services (such as software, which the EU considers a service and not a good) must also collect value added tax (see Electronic Commerce section below). The European Commission has performed a stakeholder’s consultation and is currently assessing the opportunity to propose a revision of the e-commerce Directive. See Data Privacy Section above.
Key Link: Direct Marketing over the Internet