The Dutch love bicycles. But they don't always like marketing emails related to bicycles. An ex-customer of Swapfiets - a Dutch well-known provider of monthly “bicycle subscriptions” - filed a complaint with the Dutch Advertising Code Committee (ACC) because he received an advertising email from Swapfiets containing a discount offer, even though he had not opted in for receiving such emails. Although he had been a customer of Swapfiets, it had been almost 4 years since he cancelled his Swapfiets subscription. According to the ex-customer, Swapfiets was not allowed to send him marketing emails after such a long time. The chairman of the ACC agrees that Swapfiets should not have sent a marketing email almost 4 years after cancellation of the subscription.

Swapfiets took the view that it did have the right to send the marketing email to the ex-customer. Under the Advertising Code EMAIL, in principle, advertisers need prior opt-in consent for sending marketing emails. However, there is an exception for (ex-)customers: it is allowed to send marketing emails without prior opt-in consent in case the email address used was obtained by the advertiser in the context of a prior sale to the (ex-)customer, the (ex-)customer was given the opportunity to opt out of receiving marketing emails when obtaining the email address, and the marketing email relates to the advertiser's own similar products or services. This exception applies until the (ex-)customer opts out of receiving such marketing e-mails (Artt. 1.3a and 5 Code EMAIL). Swapfiets argued that since the ex-customer had not opted-out of receiving marketing emails, Swapfiets was allowed to send the ex-customer marketing emails relating to Swapfiets subscriptions based on this “existing customer exception".

The chairman of the ACC agrees with the ex-customer that Swapfiets was not allowed to send the marketing email. According to the chairman, the right to send marketing emails to (ex-)customers is not unlimited. The chairman holds that the advertiser should take into account the reasonable expectations of a consumer based on his relationship with the advertiser. In the opinion of the chairman, Swapfiets could not reasonably use the ex-customer's email address after almost 4 years since the ex-customer's cancellation of his subscription.

This decision of the chairman of the ACC is insightful, as the Code EMAIL does not specify the time period in which advertisers can send marketing emails based on the “customer relationship exception” (nor does the Dutch Telecommunications Act, on which the Code EMAIL is based). In contrast, the Telemarketing Code 2021 does specify a maximum period of 3 years after the last purchase of a product or expiry of a service agreement. 

It is difficult to say in general for how long ex-customers' email addresses may be used for marketing purposes. This decision shows that whether or not this is permitted must be assessed on a case-by-case basis based on the reasonable expectations of the ex-customer(s) in question. As a general guideline, I would recommend to apply a maximum of 3 years after the last sale/provision of services or until the ex-customer opt-outs for marketing emails (as in the Telemarketing Code 2021), and even a shorter period of time in specific cases in which the customer(s) in question can no longer reasonably expect marketing emails within those 3 years.

So always think twice before sending marketing emails to ex-customers you would like to re-engage and who have not given their prior consent for receiving such emails. Would they still reasonably expect to receive marketing emails from you? If not, quickly ride past them in your next email marketing campaign!