The Situation - Legislation in EU

Distance Contracts Directive (97/7/EC)

Article 10 of the Directive of 20 May 1997 Concerning Distance Contracts (97/7/EC) was unfortunately drafted to put unsolicited email on the same "opt-out" basis as "junk" telephones made by a human operator. Means of contact where tireless automata would initiate communication with human beings or their apparatus of limited endurance were to be subject to more stringent "opt-in" criteria. The European Parliament, supported by the Commission, adopted an amendment to the Directive which would (logically) place email in the same category as unsolicited advertisements sent by fax or "robot" phone calls. The Ministers at the Council preferred to ignore the recommendations of Commission and Parliament and adopted the original draft.

Legislation conforming to the guidelines set forth in the Directive should be implemented in all the member states by the 4 June 2000. The Commission is then to prepare a report on this implementation together with recommendations for amendments within a year thereafter.

There is a "Minimal clause" (Article 14), which reads:- "Member States may introduce or maintain, in the area covered by this Directive, more stringent provisions compatible with the Treaty, to ensure a higher level of consumer protection."

Meanwhile, the Data Protection and Telecommunications Directive (97/66/EC) was expected to be implemented in all or in part by October 1998 (legislation in some member states was somewhat delayed). This Directive does not specifically apply to email but there are some provisions which are similar to those outlined in the Distance Contracts Directive.
 

E-Commerce Directive (2000/31/EC)

The original Proposal for a new EU Directive on certain legal aspects of electronic commerce in the internal market (since adopted as Directive 2000/31/EC) contains a labeling requirement for UCE. According to the Commission's commentary (November 1998) on Article 7,

"This Article deals with "spamming" practices, i.e. the sending of unsolicited e-mail to consumers or discussion groups. The need to protect the consumer demands solutions over and above those which already exist in Article 10(2) of Directive 97/7/EC 23 and Article 12(2) of European Parliament and Council Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector.

"This Article requires unsolicited communications to have a specific message on the envelope so that the recipient can instantly identify it as a commercial communication without having to open it."

And the actual, full text of Article 7, in its first draft:-

"Member States shall lay down in their legislation that unsolicited commercial communication by electronic mail must be clearly and unequivocally identifiable as such as soon as it is received by the recipient."

[...but only after costs of transmittal, storage, and download have been incurred by the recipient!]

After further consideration and amendments by Parliament, the Commission has suggested amending Recital 11 to include

So that the above can be realised, Article 7 is to include:

" 2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by e-mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves."

Distance Selling of Financial Services

At the time the Distance Contracts Directive was under consideration, a similar directive proposal was being drawn up concerning the distance selling of financial services. This was held up in Council because of disagreements on certain issues. On 27 September 2001 the Commission was able to issue a press release concerning the recent "breakthrough".

According to the press release, the provisions relating to Unsolicited Commercial Email are to be similar to those in the E.Commerce Directive: that is the choice between 'opt-in' and 'opt-out' to be determined by the individual Member States, the same as in the E.Commerce directive.

E-Privacy Directive Proposal COM(2000) 385

Hardly was the ink dry on the E-Commerce Directive, and new proposals were published for a new regulatory framework for electronic communications. Among them is a proposal for a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector. This is actually one of the results of the 1999 Telecommunications Review, which looked at all aspects of policy concerning telecommunications in the European Union.

The Data Protection Working Party published its first Opinion of 2000 on certain data protection aspects of electronic commerce. Among other things:-

If an e-mail address is collected in a public space on the internet, its use for electronic mailing would be contrary to the relevant Community legislation, and this for three reasons. Firstly, it could be seen as "unfair" processing of personal data in terms of article 6(1)(a) of the general directive. Secondly, it would be contrary to the purpose principle of article 6(1)(b) of that directive, in that the data subject made his e-mail address public for quite a different reason, for example participation in a newsgroup. Thirdly, given the cost imbalance and the disruption to the recipient, such mailing could not be regarded as satisfying the balance of interest test of article 7(f)

Of primary interest to us in the proposed directive is the intention in Article 13 to put e-mail on the same footing as fax and automated telephone systems. From the Explanatory Memorandum:-

Unsolicited communications

The existing Article 12 of Directive 97/66/EC provides protection against unsolicited calls for direct marketing purposes. However, since the term ‘call’ has been interpreted in a narrow sense some of the national transposition law has only created protection against unsolicited voice telephony calls for direct marketing purposes, with the exclusion of direct marketing messages by e-mail or other new forms of communications. To render the Article technology neutral, the term ‘call’ is replaced by the term ‘communication’.

Moreover, electronic mail for direct marketing purposes other than at the request of a subscriber (so-called ‘spam’), will be covered by the same type of protection as exists for faxes. This means that spamming will be prohibited except with respect to subscribers who have indicated that they want to receive unsolicited e-mails for direct marketing purposes.

Four Member States already have bans on unsolicited commercial e-mail and another is about to adopt one. In most of the other Member States opt-out systems exist. From an internal market perspective, this is not satisfactory. Direct marketers in opt-in countries may not target e-mail addresses within their own country but they can still continue to send unsolicited commercial e-mail to countries with an opt-out system. Moreover, since e-mail addresses very often give no indication of the country of residence of the recipients, a system of divergent regimes within the internal market is unworkable in practice. A harmonised optin approach solves this problem.

The actual proposed article:-

These Directives, actual and proposed, are meant to address consumer protection issues. Protection offered to businesses is minimal.
 

The Tasks at Hand

Legislative

First, to agitate in each member country for more stringent legislation to be passed concerning unsolicited bulk/commercial email and advertisement-by-telephone. Should this effort not prove to be successful, and the "opt-out" provisions be adopted, evidence of consumer dissatisfaction and annoyance must be gathered to present to the Commission so that its members can argue more convincingly for a changes in the Directives.

Professional lobbyists would be an asset, but we should remember that private citizens also have the right to lobby their Members of Parliament. Consumer associations should be able to assist: after all, we are all consumers as well.

Educational

• Internet users need to be made aware of their rights and responsibilities. The ordinary Web surfer should be able to learn that there is no need to put up with the abuse.
• The business person dazzled by the prospect of low-cost advertising needs to be made aware why the apparent cost is low (the recipient pays) and why the reaction of the recipients/prospective customers will be negative.
• Internet providers public and private must be made aware of the problems and solutions: open servers and the means to close them, a deterioration in overall 'net performance owing to vast amounts of unwanted traffic.