Navigating the legal landscape of marketing consent in Saudi Arabia
Saudi Arabia Focus
Marketing communications are an essential tool for businesses to promote their products and services, attract customers, and increase their brand awareness.
Law Update: Issue 367 - Saudi Arabia & Competition Focus
Ali AbbasAssociate,Digital & Data
Advertising and marketing communications in Saudi Arabia are governed by a range of legal and regulatory frameworks. Ensuring compliance with these requirements is essential for the avoidance of potential sanctions and mitigation of reputational risks.
Marketing communications are an essential tool for businesses to promote their products and services, attract customers, and increase their brand awareness. In the Kingdom of Saudi Arabia, marketing communications are subject to various legal and regulatory requirements that businesses need to comply with in order to avoid potential sanctions and reputational risks. This article provides a brief overview of the main laws and regulations that govern marketing communications in the Kingdom, focusing on the Personal Data Protection Law (PDPL) and its Regulations, the Regulations for Curbing SPAM Messages & Calls (Spam Regulations), and the E-Commerce Law and its Implementing Regulations.
The newly enacted PDPL provides a legal framework for sending advertising and marketing communications. The PDPL applies to the processing of personal data (by any means) that, relates to individuals that takes place in the Kingdom, including processing of personal data of individuals residing in the Kingdom by parties that are outside the Kingdom. Although the PDPL came into force on 14 September 2023, it is currently subject to a ‘grace-period’ ending in mid-September 2024.
Although the PDPL makes a distinction between advertising and marketing communications, the distinction is not entirely clear. Neither “Marketing” nor “Advertising” are defined in the PDPL, however, the implementing regulations to the PDPL do define “Direct Marketing” as follows:
Prior consent of recipients must be obtained before sending advertising or marketing communications and the identity of the sender must be clearly provided to recipients.
“Communicating with the Data Subject by any direct physical or electronic means with the aim of directing marketing material; this includes but is not limited to advertisements or promotions.”
Despite the ambiguity, the general position for both advertising and marketing communications (and with limited exceptions) is that prior consent of recipients must be obtained before sending advertising or marketing communications and the identity of the sender must be clearly provided to recipients.
In terms of obtaining adequate consent for advertising purposes, the following conditions must be met to obtain valid consent from recipients:
Consent must be freely given and must be documented in a form that allows future verification
Data subjects must be able to specify options related to the types of advertising material and desired modes of communications
Similarly, for marketing purposes consent must meet the following requirements:
Consent must be obtained directly from data subjects must be freely given and not obtained through misleading methods
Processing purposes must be clear, specific and clarified to the data subject at the time of consent
Consent must be documented in a way that allows future verification
Independent consent must be obtained for each processing purpose
For both advertising and marketing communications, an opt-out mechanism must be provided to recipients, which is free, straightforward and at least as easily accessible as the procedure for providing opt-in consent.
If advertising or marketing communications are being sent on the basis of consent and a recipient withdraw consents, then senders must immediately stop sending further advertising and marketing communications.
The Spam Regulations regulate the sending of promotional messages. ‘Promotional Messages’ are defined as Electronic Messages of a commercial or marketing nature for products or services or the collection or reminding of donations. As per the SPAM Regulation, Electronic Messages include messages sent by means of telecommunication networks to an electronic address includes emails and SMS messages.
As per the SPAM Regulations, senders of promotional messages must:
Obtain explicit consent from recipients for promotional messages, separate from privacy policies or contracts; and retain proof of such consent.
Allow recipients to opt-out of receiving promotional messages anytime through various channels (both traditional and electronic channels); and cease sending messages within 24 hours of receiving an opt-out request.
Send a confirmation notification after receiving a request to activate or suspend promotional messages
The E-Commerce Law, which has extra-territorial scope, would apply to business-to-business e-commerce activities and electronic advertisements. ‘Electronic advertisement’ is defined as any advertisement carried out by a service provider via electronic means to directly or indirectly to promote the sale of a product or the provision of a service. The definition appears to be broad enough to capture marketing communications sent by emails, SMS and automated messages.
The E-Commerce Implementing Regulations provide that an electronic advertisement, when published or sent, must include the following:
A clear statement that it is an advertisement
Information related to the product or service that allows the consumer to make an informed and conscious decision
An opt-out mechanism must be provided
Advertising and marketing communications are subject to various legal and regulatory requirements in the Kingdom, and businesses need to be aware of and comply with these requirements in order to avoid potential sanctions and reputational risks. Prior to sending advertising or marketing communications businesses should ensure that they obtain the necessary consent from recipients, provide clear and accurate information about their identity and the products or services they offer, and respect the rights and preferences of the recipients to opt out of receiving marketing communications at any time.
For further information,please contact Ali Abbas.
Published in April 2024
