9 legal questions when organising webinars answered

Bulk invitations

If you send invitations by bulk e-mail (e.g. via a tool such as MailChimp), then this is considered a direct marketing e-mail for which you require, in principle, the prior consent (opt-in) of the recipient. This consent needs to be free, specific and informed. You cannot send an e-mail to ask for this prior consent (because that is also considered a marketing e-mail).

Personal invitation

If you send personal invitations by e-mail (i.e. not in bulk), you do not need the prior consent of the recipient.

Registration

It is also possible to announce the webinar on your website or social media channel and then have participants register themselves via an online form or by sending an e-mail to a specific e-mail address.

Existing customers

If you are going to invite existing customers (i.e. persons with whom you have a contractual relationship by virtue of having already purchased products or services) by bulk e-mail, then you do not need to obtain prior consent if the webinar is about products or services similar to those the customer has previously purchased or received and provided that the customer has been given the opportunity to opt-out of receiving marketing e-mails (soft opt-in).

For professional webinar organisers for whom the participation in the webinar constitutes the service in itself (e.g. a publishing company organising online legal training), participants in a previous webinar may also be considered as “existing customers”. This means that the soft opt-in could possibly be applied, as the invitation to another webinar could probably be considered as a similar service.

Prospects

Prospects are potential customers who have not yet bought or used any products or services. With prospects, there is thus no (previous) contractual relationship, unlike with existing customers. Can you then invoke the soft opt-in for prospects (so that you do not need permission to send direct marketing e-mails)? The law states that the data must have been obtained “in the course of the sale of a product or a service” (free translation) in order to invoke the soft opt-in. The question is how this should be interpreted.

• According to a more traditional, restrictive interpretation, a sale of a product or service would be required to invoke the soft opt-in. This would mean that if you invite prospects by bulk e-mail, you would not be able to invoke the soft opt-in. With this interpretation, you therefore need to obtain an opt-in to send the invitation by bulk e-mail to prospects, or you need to invite them in another way (e.g. a personal invitation, via your own website, via social media, etc.).
• An alternative, pragmatic interpretation could be that pre-contractual steps (such as negotiations) could also be covered by the soft opt-in, so that no immediate sale would be necessary to invoke the soft opt-in. However, such a pragmatic interpretation must be legally sound, since, as an exception, the soft opt-in must be interpreted rather restrictively. The “direct marketing guidance” of the ICO (the British supervisory authority) leaves room for such an interpretation. However, Recommendation 01/2020 of the Belgian Data Protection Authority (in Dutch) does not clarify whether pre-contractual steps can also qualify for the interpretation of the criterion “in the context of the sale” (free translation).

Copyright on slides

The slides of an external speaker may be protected by copyright, but this copyright remains with the speaker if you do not make any other agreements about this. This means that you cannot simply distribute these slides further, not even in the context of a recording of the webinar (see questions 7 and 8).

Confidential information

It is possible that the speaker wishes to share information with the audience that should not be distributed further (e.g. via a recording of the webinar). It is best to make arrangements with the speaker about the recording and distribution of the webinar, so that the speaker can decide for himself what information to share with the public.

Participant data

In some cases, participants' data are shared with speakers (e.g. contact details). In this context, the speaker may use these data for his own purposes (e.g. by contacting participants afterwards), thus becoming a data controller.

As the data controller, the speaker should inform the participants about this processing, but he or she can provide this information via the organiser of the webinar. In that case, the speaker and organiser should draw up a data sharing agreement.

Moreover, in this case the organiser must inform the participant about the sharing of their personal data with the speaker.

Sharing with the Speaker

For the speaker, it is useful to know in advance who will participate in the webinar (e.g. how many participants, from which sectors, etc.). If this data is shared by the webinar organiser with an external speaker (i.e. a recipient), there should be a legal basis for sharing this data. As the sharing of these data is likely to be within the reasonable expectations of the participants, the ‘legitimate interest’ basis is one of the possibilities. This means that it would not be necessary to ask the participants’ permission to share certain data with the external speaker.

Certain types of webinars may even require the sharing of personal data with the speaker (e.g. an interactive webinar). In this case, the sharing of such personal data could possibly be based on the ‘contract’ ground rather than the ‘legitimate interest’ ground, as this is required by the nature of the webinar.

In addition, the participants must in any case be informed about this (category of) recipient (see question 4 above).

Sharing with other parties

If the personal data are shared with other recipients than the external speaker, this may not be part of the reasonable expectations of the participants and the ‘legitimate interest’ principle is therefore more difficult to apply.

Which basis is appropriate depends on the type of recipient (e.g. a platform hosting the webinar, or other commercial companies? ). If the data is passed on as leads to other companies, the consent of the participants may need to be sought.

Also in this case, the participants should at least be informed about the sharing of their data with this (category) of recipient (see question 4 above).

Recording by organiser

The organiser can record the webinar, but depending on the personal data that will be included in the recording (e.g. images, audio, questions in the public chat, etc.), the organiser needs to inform the participants beforehand. It is best to do this at the time of registration, especially if it is a paid webinar. People who do not agree with the recording can then decide not to register.

You can also inform participants at the start of the webinar before you start recording. People who do not agree with a recording can then leave the webinar. Then you can start the recording and repeat that the webinar is being recorded, so that later you also have proof that everyone who is participating has agreed to the recording.

It is also best to inform participants about the specific data that will be recorded. It is possible that the name of the person asking the question will also be recorded (in the public chat). If this is the case, you could also provide an alternative method of asking questions (e.g. by sending an e-mail message to the host, or by making names invisible in the public chat).

Recording by participants

It is also possible that a participant records the webinar himself. If such recordings are not prohibited by the organiser, it is not prohibited for the participant to make a recording and use it for his/her own purposes as long as the participant does not thereby infringe any other legislation (e.g. copyright of the speaker).

The organiser may prohibit the recording of the webinar by participants by including it in terms and conditions of participation in the webinar to which the participants agreed upon registration.