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We have noted a decision of the English Agency for Data Protection (AEPD) by which a complaint is filed in connection with the receipt of an unsolicited email ( "spam " ). Article 21 of Law 34/2002 of July 11, Services Information Society and Electronic Commerce (LSSI ) prohibits the sending "advertising or promotional mail electronic or other means of electronic communication that had been previously requested or expressly authorized by the recipients thereof ". therefore c on general (there is one exception that comes into effect in this case) sending unsolicited commercial communication is a violation, in violation of art. 38.4.d of same standard.


In this case, it has been established to send unsolicited commercial communication, the AEPD agree not to initiate disciplinary proceedings and tax audits, based on two aspects:


1 .- The presumption of innocence. AEPD estimated that since " on the website of the alleged offender provides a procedure for providing information to request e-mail address, [...] it is concluded that there is reasonable doubt about how they were obtained Mailing address appellants and, therefore, the existence of consent to the transfer of mail. "


2 .- The principles of minimum intervention and proportionality. The AEPD considers need to be exhausted other alternatives procedural ways to open an infringement procedure. In this case, since that the email sent information about the procedure consisted enabled to oppose the sending of new commercial communications, and has not established that it exercised the right of opposition, the Agency estimates that have not exhausted the above formulas procedural alternatives.


Go ahead our entire agreement with respect to the principles of presumption of innocence and the minimal intervention and proportionality, it is clear. However, the application of these principles, pushed to the limit (as in our opinion, makes the AEPD in this case) allows that only partially meet the requirements to send unsolicited commercial communications (as is the procedure to enable the opposition to the sending of new commercial communications, as set out in art. 22 of the LSSI) can escape from the commission of an offense.


Therefore, if we stick to that contained in this resolution, the AEPD not sanction the sending of unsolicited commercial communications if:


- are available on a web page form Inquiry.
- It complies with the obligation provided for in art. 22 of the LSSI regarding the qualification of the procedure of opposition.


Anyway, it seems it gets really easy to send spam indiscriminate. However, knowing the doctrinal changes that we have used the AEPD, my recommendation is that you only send commercial communications by electronic means, as stated in art. 21 of the LSSI, when it has the consent of the recipient or the address of this has been lawfully obtained under a prior contractual relationship and commercial communication concerns products or services of their own company are similar to those initially object customer recruitment.