Transfer comments field is an automatic communication system

Including advertising in the comments field of a bank transfer falls under the spam regulations of the Telecommunications Act. The Advertising Code Committee ruled that such a comments field is an "automated communication system": it is not filled in voluntarily, but with the purpose that the recipient reads the message. Are you sending a commercial message via a (symbolic) bank transfer without the recipient's consent? Then you risk the same consequences as with unsolicited spam email. The lesson for entrepreneurs: creative marketing channels are also bound by the rules regarding direct marketing and privacy. It is not the technology or the amount that matters, but whether you are trying to get a commercial message to someone.

Short answer: when is it allowed and when is it not?

• Purely a service message (payment confirmation, notification that a service is ending): permitted in principle.
• Service message with a promotional addition (offer, invitation to contact): quickly becomes a commercial message and falls under spam rules.
• Pure advertising without permission or a valid exception: not permitted, regardless of the channel or the amount.

What is an "automated communication system"?

The Telecommunications Act restricts the unsolicited sending of commercial electronic messages. One of the key concepts in this regard is the "automated communication system": an automated channel used to send messages, such as email, SMS, or automated calls. If your channel falls under this definition, a consent requirement (opt-in) applies in principle, unless a statutory exception applies, for example in the case of an existing customer relationship.

For a long time, entrepreneurs primarily thought of classic channels such as email and SMS when it came to "automated communication systems." However, regulators and the Advertising Code Committee interpret the concept broadly. It concerns the function of the channel: if it is used to get a message to a recipient, it counts, regardless of the technology behind it.

The case: a KPN cent with an advertisement

In a case before the Advertising Code Committee, a consumer received a transfer of ONE cent from KPN. Attached to that transfer was a remark: that ISDN would be discontinued and that the consumer could contact them for personal advice. The consumer read the advertising message directly on the account statement.

The consumer asked KPN to substantiate how it obtained the necessary data. In the absence of adequate substantiation, the consumer appealed to the Advertising Code Committee. The question: is it permissible to place advertising on someone's bank statement in this manner?

Why the comments field falls under the spam rules

The Advertising Code Committee ruled that such a comments field is not filled in optionally, but with a concrete purpose: to let the recipient read what is inside. KPN did not use the field here as a payment method, but as a method of communication. Functionally, this differs little from an SMS; the only difference is that the message does not go to a phone number, but to an account number.

The committee took into account that the message was not purely informative. In addition to the announcement that ISDN would be discontinued, the message contained an invitation to make contact for advice. It was precisely this promotional nature that made it a commercial message. The conclusion: this constitutes an automated communication system, and therefore an unsolicited commercial message to which spam rules apply. The symbolic cent did not make the message any less innocent; it was precisely the advertising content that brought it under the Telecommunications Act.

It is not about the technique or the amount, but about the function: if a channel is used to get a commercial message to a recipient, the rules surrounding direct marketing apply.

Broad interpretation: the ACM is also monitoring the situation

The broad interpretation does not stand alone. The Authority for Consumers and Markets (ACM), which supervises the spam provisions in the Telecommunications Act, also adopts a broad approach to what constitutes an unsolicited commercial message. The basic principle is that direct electronic advertising messages generally fall under the rules, unless an exception applies, such as valid consent or an existing customer relationship within legal limits.

For entrepreneurs, that is an important signal: a "creative" channel that appears to circumvent standard spam rules rarely offers a safe route. The regulator looks at the intent and the effect, not at the label you attach to it.

Service message or advertisement? Here is the difference

Not every message to a customer falls under spam rules. In principle, you may send a purely service message, such as a payment confirmation or a notification that a service is ending. The tipping point lies in the addition of a commercial or promotional message. As soon as you include an offer, invitation, or call for contact, it gives the entire message a commercial character.

In the KPN case, that was exactly where the problem lay: the announcement regarding the end of ISDN was informative in itself, but the invitation to contact them for advice turned it into a commercial message. Are you unsure whether your message is still "service" or already "advertising"? Then assess whether the recipient can reasonably interpret it as a promotion. If so, assume that the spam rules apply.

The exception for existing customers: pay attention to the limits

The law provides an exception for customer contact. If you have obtained someone's data in the context of a sale, you may, subject to conditions, contact that customer regarding your own, similar products or services. However, this scope is limited: it must involve similar offers, the customer must be able to easily unsubscribe at any time, and you must respect the unsubscribe request. Do not count on this exception covering every creative action; in case of doubt, prior consent is the safest route. Because the exact conditions and limits vary by situation, it pays to have an action reviewed in advance.

Consequences and risks for your business

• Complaints and reputational damage. A recipient may file a complaint with the Advertising Code Committee or the ACM; a negative ruling is public.
• Enforcement by the ACM. The regulator can take action in the event of a violation of the spam provisions. Do not count on leniency because it was "only" a lighthearted stunt.
• Privacy aspect. To contact someone, you often need personal data. The use of this for marketing must comply with the GDPR.
• The burden of proof lies with you. Are you relying on consent or a customer relationship? Then you must be able to demonstrate this.

Not only the Telecommunications Act: also the GDPR

The GDPR sets limits on the use of personal data. If you wish to actively approach consumers or businesses, you need a valid legal basis for doing so and must be transparent about what you do with the data. Simply using data for unsolicited marketing is not automatically permitted: you must be able to explain why you are approaching someone and on what basis.

Those who properly structure marketing and data usage are doubly well-positioned: they avoid fines and complaints, and they can actually do more with the data they already have within the legal framework. Proper GDPR implementation and clear agreements with parties that process data on your behalf (for example, via a data processing agreement) are part of this.

Practical next steps

1. Inventory your channels. Map out the channels through which you send commercial messages, including less obvious ones, such as comment fields, confirmation emails, or payment descriptions.
2. Check the legal basis. Do you have valid consent per channel or an existing customer relationship that falls within the law?
3. Document consent. Ensure that your opt-in and unsubscribe options are demonstrable.
4. Check against the GDPR. Do you use personal data? Check the legal basis, purpose limitation, and your privacy statement.
5. In doubt? Ask for advice. Have a campaign legally reviewed before going live. Our legal experts provide targeted legal assistance.

Frequently Asked Questions

Am I allowed to place an advertisement in the comments field of a bank transfer?

Not without further ado. The Advertising Code Committee classified the comments field as an automated communication system. Consequently, a commercial message within it falls under spam regulations and, in principle, requires consent or an exception, just like with email or SMS.

What exactly is an "automated communication system"?

It is an automated channel for sending messages, such as email, SMS, or automated calls. The concept is interpreted broadly: the determining factor is whether the channel is used to deliver a (commercial) message to a recipient.

Does it matter that it is only a symbolic amount?

No. It is not the amount that is decisive, but the commercial message you send along. It was precisely that content that brought the transfer in the KPN case under the Telecommunications Act.

Who supervises and what can happen?

The Authority for Consumers and Markets (ACM) supervises the spam provisions in the Telecommunications Act and has the power to enforce them. In addition, recipients can file a complaint with the Advertising Code Committee. A negative ruling is public and can result in reputational damage.

Does this also apply to confirmation emails and payment descriptions?

If you add a commercial message to a confirmation email or payment description, that element may fall under spam rules. Assess on a case-by-case basis whether the message is commercial and whether you have a valid legal basis.

May I transfer a symbolic amount as a thank you to customers?

A simple thank-you without a promotional message is different from advertising, but the line is thin. As soon as you add an offer or a call to action to the description, it quickly becomes a commercial message subject to spam rules. Therefore, keep service messages and marketing strictly separate.

Am I allowed to contact my existing customers unsolicited?

Under certain conditions, yes. An exception applies to existing customers, but this is limited to similar proprietary products or services, and the customer must always be able to easily unsubscribe. Unsure if your promotion falls within those limits? Have it checked in advance.

Unsure about your marketing campaign? We'll help you think it through

Do you want to actively approach consumers or businesses, but are unsure if your actions hold up legally? Our legal experts explain what is and isn't allowed, assess your marketing against the Telecommunications Act and the GDPR, and immediately review your privacy terms. This way, you avoid complaints and fines and safely get more out of the data you already have. View our expertise in privacy and data protection or schedule an intake directly.