FRANCE Law and Practice Contributed by: Marianne Le Moullec, Gaëlle Robic and Joséphine Perrin, Orasis Avocats
recommended by the CNIL. Pre-checked checkboxes or acceptance of the terms and conditions are not valid means to obtain such informed consent to email marketing. The name of the advertiser must be speci - fied in the email as well as the means to oppose any further solicitations by email, via an “unsubscribe” link, for example. There are two exceptions to the positive “opt-in” con - sent requirement. • The first exception is if the consumer is already a client of the company for similar services or prod - ucts, and if the email prospecting concerns such services or products. • The second exception is if the email prospecting is not marketing or commercial email but concerns a charity, for example. In both cases, the consumer must be informed that its email is used for prospection, and must be able to oppose it at any time via an unsubscribe link, for example. Please also note that email marketing to professionals (B2B) is subject to a more flexible regime. While the GDPR still applies when sending marketing emails to identifiable individuals in a business context (eg, first - name.lastname@company.com), the CNIL admits that prior consent is not required if the message is relevant to the recipient’s professional activity and includes a clear right to object. Violations of Article L.34-5 are punishable by an administrative sanction of up to EUR375,000 when committed by a legal person, issued by the DGCCRF. Separately and in accordance with the GDPR (Article 83, Section 5), the CNIL can also order administrative fines for non-compliance with consent obligations, of up to EUR20 million or 4% of the global yearly turno - ver of the company, whichever is higher. 6.2 Telemarketing The rules for prospection by phone are currently not the same when the prospection is done by human activity (opt-out requirement) and when it is done via automated call machines (opt-in requirement). How - ever, following many abuses, a new law was adopted
on 30 June 2025, which now requires opt-in consent for any phone solicitation. Current Rules on Commercial Solicitation by Phone (Cold Calling) When their phone data is collected, consumers must be informed that it could be used for commercial prospection by phone and must be allowed to oppose. However, they do not need to give their prior consent by an affirmative action such as checking a box. This is an “opt-out” requirement. It is strictly prohibited to contact by phone a consumer who on the “cold calling opposition list”. When contacting a consumer by phone, the advertiser must give its name and its company, and explain that it is a commercial solicitation. He or she must inform the consumer of the possibility to register on a cold calling opposition list. New Rules on Cold Calling From August 2026, all commercial solicitations by phone will require an opt-in consent: it will be prohib - ited to solicit by telephone, directly or through a third party acting on one’s behalf, a consumer who has not previously given their consent to be the subject of commercial prospecting by this means. It is specified in the law that such consent is meant as a clear affirmative action that personal data con - cerning the individual may be used for commercial solicitation by telephone. Opt-In Consent for Telemarking by Automated Call Machines When the phone prospecting is done via an auto - mated call machine, there is an opt-in requirement, via a checkbox for example when the consumer data is collected. The rules and sanctions are the same as those for email prospection; those rules also apply to marketing via fax machine. 6.3 Text Messaging The rules and sanctions for text messaging are the same as the rules for email marketing (see 6.1 Email Marketing ).
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