Data Protected - Denmark

Contributed by Gorrissen Federspiel

Last updated June 2018

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

ePrivacy | Marketing and cookies

National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone

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General | Data Protection Laws

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National Legislation

General data protection laws

The General Data Protection Regulation (EU) (2016/679)(“GDPR”).

On 25 October 2017, the Danish Minister of Justice issued a proposal for a new Danish Data Protection Act (the “Data Protection Act”) to implement the GDPR. The Data Protection Act underwent a first reading in the Danish Parliament on 16 November 2017 and was referred to the Legal Affairs Committee of the Danish Parliament. It was passed on 17 May 2018. 

Entry into force

The GDPR applies from 25 May 2018.

The Data Protection Act entered into force at the same time as the GDPR, on 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

Under the Data Protection Act the Danish Data Protection Agency (Datatilsynet) will act as the supervisory authority in Denmark.

The Data Protection Agency (Datatilsynet) (the “Agency”)
Borgergade 28, 5
DK-1300
Copenhagen K
Denmark

Phone +45 33 19 32 00

www.datatilsynet.dk

The Agency will represent Denmark on the European Data Protection Board.

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR. 

However, the Data Protection Act provides that authorisation from the Agency must be obtained prior to processing personal data where the processing takes place: (i) for the purpose of warning others against entering into business or employment relations with the data subject; (ii) for the purpose of commercial disclosure of information to assess financial solidity and creditworthiness; or (iii) solely for the purpose of operating a judicial information system. The Danish Minister of Justice may introduce further regulations in respect of these exceptions as well as further regulations which will require prior authorisation from the Agency.

In addition, prior authorisation from the Agency must be obtained if personal data processed for scientific or statistical purposes is to be disclosed to a third party.

Furthermore, the Data Protection Act gives the Danish Minister of Justice the power to introduce regulations to require controllers to pay charges to the Agency to help fund the Agency’s tasks. No such regulations have been passed to date.

Exemptions to notification

Not applicable.

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Scope of Application

What is the territorial scope of application?

The GDPR applies the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited. 

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

The Data Protection Act contains a number of national derogations, including for journalism, prevention of crime, parliamentary work and legal proceedings.

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Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as IP addresses and cookie identifiers.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

Processing of information on a legal entity will be subject to the Data Protection Act if: (i) the processing of information about a legal entity is carried out for or on behalf of a credit information agency; or (ii) if the processing of information about a legal entity is carried out with the purpose of warning others against entering into a business or employment relationship with the legal entity.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the Data Protection Directive.

Are there any formalities to obtain consent to process personal data?

Obtaining consent will become much harder under the GDPR. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The Article 29 Working Party has issued Guidelines on Consent (WP259).

However, there is a special rule in the Data Protection Act, which provides that consent may be used as a legal basis in an employment context, provided that the consent is given in accordance with the conditions laid down in  the GDPR. That consent can be used in an employment context has long been practice under Danish law. The rule is however, controversial in light of commentary that an employee will almost never be in a position to freely give, refuse or revoke consent due to the dependency that results from the employer/employee relationship.

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

In Denmark, the age at which a child can provide a valid consent is reduced to 13 years old.

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Sensitive Personal Data

What is sensitive personal data?

Sensitive personal data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.

In Denmark, personal registration numbers (CPR no.) are also regarded as sensitive personal data.

Are there additional rules for processing sensitive personal data?

Sensitive personal data may only be processed if a condition for processing sensitive personal data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the field of employment law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

The Data Protection Act does not provide much further clarity as to when these processing conditions apply.

In addition, the Data Protection Act allows for the processing of sensitive personal data, insofar as processing takes place with a view to operate a judicial information system of significant public interest and such processing is necessary to operate such a system. Furthermore, the Data Protection Act provides clarity about when public authorities and private entities may process information on a personal registration number (e.g. CPR no.).

Are there additional rules for processing information about criminal offences?

It is only possible to process information about criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law.

The Data Protection Act allows for the processing of information about criminal offences where the requirements for the processing of sensitive information are met. In addition, information on criminal offences may be processed: (i) by public authorities if processing is necessary to perform the tasks incumbent on the authority; or (ii) by private entities if processing is necessary for the purposes of pursuing a legitimate interest and such interest clearly overrides the interests of the data subject. The Data Protection Act sets out further requirements as to when information on criminal offences may be disclosed to third parties.

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing sensitive personal data on a large scale (including processing information about criminal offences).

Data protection officers must also be appointed where required by national law. However, the Data Protection Act does not impose any additional obligations to appoint a data protection officer.

What are the duties of the data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

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Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing sensitive personal data on a large scale; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV).

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above. 

In Denmark, the Agency has the power to draw up a list of “high risk” processing but has not done so yet.

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Rights of Data Subjects

Privacy notices

A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

The Article 29 Working Party has issued Guidelines on Transparency (WP260).

In Denmark, there is no obligation to provide this information in Danish, though it may be difficult to show that the information has been provided fairly if it is not in a language the data subject is familiar with.

However, the Data Protection Act provides that there should be no duty to provide a privacy notice if the data subject’s interests are overridden by crucial private interests. This rule will be relevant in relation to handling of whistleblowing reports and other internal investigations where the information duty can be postponed.

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex. 

The Data Protection Act provides that there should be no right to access information if the data subject’s interests are overridden by crucial private interests. The rule will be relevant in relation to handling of whistleblowing reports where subject access requests may be denied or in relation to protection of trade secrets.

Rights to data portability

Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

The Article 29 Working Party has issued Guidelines on data portability (WP242).

Right to be forgotten

A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data. 

Objection to direct marketing

A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes the processing of their personal data for profiling purposes.

The Data Protection Act suggests that the special Danish rules on use of personal data for marketing purposes will still apply when the GDPR enters into force. This means that information on a consumer may be disclosed and used by a company or on behalf of a company for marketing purposes, without consent from the consumer, if the information concerns general customer data which forms the basis for classification into customer categories and if the requirements in the GDPR are met. The GDPR provides that processing can take place to pursue legitimate interests of the controller or third party, when such interests are not overridden by the interests of the data subject.

Examples of such general customer information which may be disclosed for marketing purposes without consent from the customer include: (i) name, address, gender and age; (ii) that the consumer is a homeowner, car owner, computer owner or similar; and (ii) that the consumer is a customer of hobby articles, baby equipment, organic grocery or other generally defined product lines will comprise general customer information as specified above. The information may however not be disclosed, if the consumer has objected to their personal data being processed for direct marketing purposes, including by having registered in the Danish CPR-register that he or she is not interested in direct marketing approaches. Likewise more detailed information on what the consumer has been buying or on the consumer’s consumption habits may not be disclosed without consent.

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).

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Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. 

Specific rules governing processing by third party agents (processors)

A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified. 

The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).

Specific notice of breach laws apply to the electronic communications sector under the Privacy and Electronic Communications Directive

Controllers in certain sectors may be required to inform sectoral regulators of any breach, for example, financial services firms may be required to inform the Danish Financial Supervisory Authority (Finanstilsynet) of any breach.

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. Transfers can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (ii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.

The position is broadly the same as under the Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.

The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).

Notification and approval of national regulator (including notification of use of Model Contracts)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer. 

For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority that will cover transfers from anywhere in the EU.

In Denmark, the Agency has approved binding corporate rules from GE, Novo Nordisk and Accenture.

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Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The Article 29 Working Party has issued Guidelines on administrative fines (WP253).

Imprisonment

Violation of the GDPR and of the Danish Data Protection Act will constitute a criminal offence, which is punishable by imprisonment of up to six months.

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing. 

The Data Protection Act will give the Agency the ability to exercise these powers through information notices, assessment notices and enforcement notices.

Practice

In Denmark, there is no current enforcement practice in relation to the GDPR. However, the enforcement of the current law is instructive.

The number of new cases handled by the Authority in 2015 was 4,427, a decrease of 19 percent from the 5,461 cases handled in 2015, which also includes preparatory work in connection with new regulations. The number of cases initiated by the Agency after complaints from citizens against companies was 1,083 in 2016 compared to 1,112 in 2015. The number of cases initiated by the Agency itself was 110, a decrease of approximately 27 percent from the 150 cases handled in 2015. 195 new international cases were registered in 2016.

The Agency does not publish an inventory of prosecutions. However, to our knowledge there have been the following court cases: (i) a municipality had transferred sensitive personal data concerning a former employee to another municipality, and this was found to be illegal according to the DPA. The transferring municipality was ordered to pay €3,330 in tortious compensation to the employee. The case was confirmed in 2011 by the Danish Supreme Court and this was the first time the Supreme Court had been asked to assess and interpret the Danish Act on Processing of Personal Data; (ii) a criminal court case from 2010 in which the defendant was found not guilty of violating the DPA by publishing CCTV footage of a robber; (iii) in a court case from 2008 an employer was ordered to pay €3,360 in tortious compensation to an employee due to unjustified TV surveillance in violation of the DPA; (iv) a court decision in 2007 resulted in a fine of approximately €400 for publishing the social security numbers of two individuals on a website for seven days; (v) in a court case in 2007, an employer was ordered to pay €1,333 in tortious compensation to an employee because the employer had violated the DPA by publishing personal data of the employee on the internet; and (vi) in a court case in 2016 a store owner was fined approximately €660 for publishing TV surveillance footage of a competitor’s employee in the store owner’s store in a closed group on Facebook.

So far only fines have been levied. The highest fine imposed to date amounted to approximately €6,500 and was imposed in 2001. The case concerned the unauthorised transfer of the customer database of a newspaper to another newspaper, which used the customer database for marketing purposes. The case did not go to court as the newspaper accepted the fine.

The Agency has announced that it will publish a number of guidelines to clarify the legal position under the GDPR. So far, guidelines have been issued on controllers and processors, on consent and on the role of the data protection officer.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

Article 13 of the Privacy and Electronic Communications Directive regarding unsolicited direct marketing has been implemented by Act No. 450 of 10 June 2003, that came into force on 25 July 2003, which amended Section 6a (now Section 10) of the Marketing Practices Act (Act No. 426 of 3 May 2017).

The other provisions of the Privacy and Electronic Communications Directive have been implemented by the Danish Act on Electronic Communications and Network Services No. 128 of 7 February 2014. This Act is amended by Act No. 741 of 1 June 2015,Act No. 1567 of 15 December 2015 and Act No. 203 of 28 February 2017.

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Cookies

Conditions for use of cookies

The Danish Executive Order on Cookies No. 1148 of 9 December 2011 entered into force on 14 December 2011. Guidance to the Executive Order was published in December 2011 by the supervisory authority – The Danish Business Authority.

The Executive Order requires prior specific and informed consent for the use of cookies unless: (i) the storage has the sole purpose of carrying out communications via an electronic communications network; or (ii) the cookie is strictly necessary for the provision of a service to a user and the user has specifically requested such service.

The consent of the user to the storing of cookies can be either an implied or active consent. The Danish Business Authority has clarified that the active consent can be seen as sufficient provided that the website owner indicates what action will constitute the “active consent”. It is also necessary to inform users of the use of cookies, the purpose of such use, the duration of the cookies and the name of the entity/person storing the cookies, and the users should be offered the right to refuse the use of cookies. The information provided must be clear and sufficient.

Regulatory guidance on the use of cookies

The Danish Business Authority issued cookie guidelines on 15 April 2013 in order to clarify some of the many questions raised in relation to the Danish Executive Order on Cookies. The cookie guidelines also contain advice on practical matters such as how to identify which cookies are used on a website.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

It is not permitted to transmit unsolicited direct marketing electronic mail (i.e. e-mail, SMS and MMS messages), unless the recipient has notified the sender of his consent to such communications.

Conditions for direct marketing by e-mail to corporate subscribers

It is not permitted to transmit unsolicited direct marketing electronic mail (i.e. e-mail, SMS and MMS messages), unless the recipient has notified the sender of his consent to such communications.

Exemptions and other issues

It is permitted to send electronic mail to individual subscribers and corporate subscribers for the purposes of direct marketing if the similar products and services exemption applies.

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Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

It is not permitted to make unsolicited direct marketing calls to individual subscribers unless the subscriber has notified the caller of his consent to this approach.

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

It is permitted to make unsolicited direct marketing calls to corporate subscribers unless these have indicated, that they do not wish to receive such unsolicited direct marketing calls for example via the Danish Company Register.

Exemptions and other issues

It is permitted to make unsolicited direct marketing calls to an individual subscriber (consumer) if the call concerns: (i) the ordering of books; (ii) the taking out of a subscription to a newspaper, a magazine or a gazette; (iii) the procurement of insurance contracts; or (iv) the subscription to certain kinds of rescue assistance services (for example, a roadside assistance subscription) or the transport of patients. However, the caller must still investigate whether the person concerned has declined communications for marketing purposes, for example a “Robinson list” prepared each quarter by the Central Office of Personal Registration.

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