(Written on January 8, 2024)
Regulations Related to the Transmission of Promotional Information
Concerning the transmission of promotional information for profit-making purposes using electronic transmission media, the provisions from Article 50 to Article 50-8 of the Act on Promotion of Information and Communications Network Utilization and Information Protection (hereinafter referred to as the "Information and Communications Network Act") apply, taking precedence over the general provisions of the Personal Information Protection Act, such as Article 22.
Therefore, despite recent amendments to the Personal Information Protection Act, the Information and Communications Network Act should be examined in relation to the transmission of promotional information.
Details related to the below content can be found in the 2023 Personal Information Legal Interpretation Cases (2023), published by the Personal Information Protection Commission, on page 15 and below.
The Matter of Whether a Notification of Coupon Expiry is Considered Promotional Information
From an information processing standpoint, providing coupons as benefits regardless of customer consent is principally considered promotional information (Guide to the Information and Communications Network Act for the Prevention of Illegal Spam (2020), page 13, Korea Communications Commission).
However, if a customer has purchased the coupon, notifying them of its expiration is not considered promotional information but rather a service-related notification. It falls within the scope of personal information use necessary for contract performance or service provision with the customer, thus requiring no prior consent.
Principle: Consent of the Personal Information Subject Required
Article 50 of the Information and Communications Network Act stipulates that anyone transmitting promotional information for profit-making purposes using electronic transmission media must comply with the following obligations. Therefore, explicit prior consent from the recipient is required for anyone intending to transmit such promotional information.
Scope of 'Promotional Information for Profit-making Purposes':
▪ Anyone: This means that Article 50's restrictions apply to anyone transmitting promotional information for profit-making purposes, including individuals, public institutions, organizations, corporations, not just businesses operating for profit.
▪ Electronic Transmission Media: Refers to all mediums capable of transmitting information in electronic form (codes, text, voice, image, video, etc.) to the recipient via an information and communications network (landline phones, mobile phones, faxes, PCs, tablet PCs, etc.).
▪ For Profit: Refers to acts aimed at acquiring financial benefits, not the nature of being a 'for-profit' entity.
▪ Promotional Information for Profit-making Purposes:
- Information transmitted by the sender to broadly achieve economic benefits, including ① information about the sender and ② information about goods or services provided by the sender. Information sent by a business operating for profit to its customers is generally considered promotional.
However, the following are exceptions:
1) Information related to the performance of a contract between the sender and recipient.
2) Promotional information for public interest purposes.
3) Others: Cases where the following information is included in information that falls under the exceptions of promotional information
- Information indicating a connection to promotional information, regularly transmitted once a month at the bottom of non-promotional information. This information is only accessible to the recipient through specific actions (such as clicking), with measures taken to ensure this (like unfolding a link page).
- Simple requests for consent to receive promotional information, added to information that falls under the reasons for exceptions to promotional information for profit-making purposes.
▪ Transmission: Refers to delivering profit-making promotional information to the recipient through an information and communications network (e.g., to the recipient's private space such as mobile phone, email).
▪ Explicit Prior Consent: Means that the recipient must be clearly informed about the possibility of receiving future advertisements and the content of the promotional information before obtaining their consent.
Exceptions: In some cases, promotional information for profit-making purposes can be transmitted without prior consent.
Nevertheless, in the following cases, promotional information for profit-making purposes can be sent without prior consent:
1. When a person who has directly collected the contact information from the recipient through a transaction of goods etc., intends to transmit promotional information about the same type of goods etc., within "6 months from the day the transaction of the relevant goods etc., ended".
※ Same type of goods etc.: Refers to goods or services that the recipient can objectively expect from the business.
2. When a telephone solicitation salesperson under the Door-to-Door Sales Act informs the recipient of the source of personal information collection and solicits over the phone.
※ Disclosure of Personal Information Collection Source: Refers to informing the recipient how the telephone solicitation salesperson obtained their personal information.
Conclusion:
Therefore, regarding personal information processing related to advertising transmission in marketing, Article 50 of the Information and Communications Network Act applies. Thus, advertisement transmission is possible even without the promotional/marketing advertisement consent of the information subject if ⅰ) the contact information used for advertising transmission is directly collected from the recipient, ⅱ) the transmitted advertisement is about goods etc., of the same type as the previous transaction, and ⅲ) the advertisement transmission occurs within 6 months from the end of the transaction.
However, even in such cases, if the information subject subsequently expresses a refusal to receive or withdraws consent, the transmission of promotional information for profit-making purposes is restricted (Information and Communications Network Act, Article 50, Clause 2). Therefore, even if advertisements are transmitted without the recipient's consent, if the information subject later expresses a refusal, the transmission of such promotional information should not be continued.