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The 1998 Data Protection Act establishes what a company can and can't do with the data they hold but doesn't make any specific provisions with regard to email or more specifically, email marketing. Unsolicited email, aka 'Spam' is becoming a growing problem that is costing business worldwide a staggering ý6bn per year in on-line connection costs. At extravision we've spent some time following the various EU developments and this article outlines our interpretation on the latest Directive, dated 4th Feb 2002, and what it means for our clients.
The European Parliament has been reviewing all aspects of the subject and have presented their findings in the document entitled 'The Common Position' with a view to the adoption of the Directive of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector (04/02/02). Article 13 on pages 29 and 30 clauses 1, 2, 3, 4 & 5 presents the EU position. The following extract from the Directive presents the EU position on unsolicited communications. It states:
Article 13, Unsolicited communications
- The use of automated calling systems without human intervention (automatic calling
machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.
- Notwithstanding paragraph 1, where a natural or legal person obtains electronic contact details for electronic mail directly from its customers, in the context of the purchase of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services, provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message where the customer has not initially refused such use.
- Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, by means other than those referred to in paragraph 1, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation.
- In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited.
- Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.
For a summary of the e-commerce directive Click Here
For a full copy of the e-commerce directive Click Here
This latest draft of the new directive is set for a second reading on the 7th May 02 and if approved by the European parliament (and general opinion suggests it will be) will be finalised by the end of May and should become law around September 2003.
What does this mean?
So after two years of twisting and turning it now seems that the EU recommendation will be for an 'opt-in' basis for email communication. Great news for Europe? Well the problem here is that the people it will penalise are the responsible marketing professionals operating within Europe.
One of the problems is that much spam is created outside of the EU and this directive will not stop that. Responsible marketing professionals, unlike spammers, don?t send out blanket email communications to people who are not interested. They are not responsible for an inbox full of special offers on herbal viagra, losing 20 pounds in 10 days! or seeing Britney Spears naked! along with all of the other offers that the recipient rarely wants. These 'spam' communications are essentially sent at random with no way of turning down future communications. If a recipient tries to unsubscribe then they will generally alert the sender to the fact that they are a live address and they?ll receive even more spam. This is totally unacceptable and it is what the directive aims to stop.
extravision have been following the progress of the directive closely. 'The problem with opt-in is that the people who will be penalised are the responsible marketers who will comply with the directive' says Sales Director, Alastair Campbell. 'The people who are spamming at the moment will continue to do so and in this light the directive will only set to penalise the people who will comply?. So the future for email marketing looks to be that your inbox will be full of more unwanted mail announcing yet more weight loss programmes, sex sites and less information of any real value.
At extravision, as ever, we will always ensure that our clients are acting in line with this legislation as it unfolds - and it surely will. We have never been involved in sending out unwanted communication and all of our email ?prospecting? activities are carried out in line with current legislation. As expected of any professional organisation we always offer a simple way of allowing a recipient to opt not to receive further communication from our clients and deliver information of value. But in some instances in the future a small percentage of our communications could become illegal. " We act responsibly, we always will, but this legislation will penalise us and our customers who act reasonably and within the law" adds Alastair Campbell. So brace yourself for an ever increasing amount of spam - but not from within Europe!
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