• 'Antispam Directive' Moves to (Euro) Parliament
   
• AOL to Say, "me, too" to DMAs' Opposition to Antispam Directive?
   
• Italian Radicals Spam
   
• Marketers to be Allowed 'One Free Bite' in Finland Despite Local Ban on Unsolicited Commercial Email
   

'Antispam Directive' Moves to Parliament

No sooner is the ink dry on the E-Commerce Directive than a package of new measures is issued by the European Commission which includes a provision that advertising email may be sent only with the prior consent of the recipient. "Email is to be put on the same footing as fax and automated calling systems," remarks EuroCAUCE Chair George Mills, "something we have wanted all along, or at least since 1997."

The new directive proposal concerning privacy in the electronic communications sector is one of the outcomes of the 1999 Telecommunications Review, together with experience gathered in the course of implementing the 1997 Data Protection and Telecommunications Directive. In the Explanatory Memorandum which accompanies the actual directive proposal, the Commission notes the problems encountered in implementing the previous Directive and the desirability of having a harmonised approach to the issue of Unsolicited Communications throughout the internal market.

This proposal is expected to be hotly contested by direct marketers in the European Parliament. There are many who still think that they should have the final say as to what goes into a consumer's mailbox. There are others who have grown old in the business using postal mail, and who have difficulty in adjusting to the new medium. Simply put, when the recipient has to pay, then courtesy, if nothing else, demands that explicit permission be secured.
 

AOL to Say, "me, too" to DMAs' Opposition to Antispam Directive?

That Europarliamentarians are being intensely lobbied regarding the proposal for a new directive concerning data protection and electronic communications is to be expected. That the various national and all-Union Direct Marketing Associations oppose the European Commission's move to put email on the same footing as fax and automated telephone systems in requiring prior consent of the recipient is to be understood, if regretted. That the DMAs are to be joined, according to unconfirmed reports, by no less than AOL -- as one of the largest providers -- is not so easily understandable.

"Historically, AOL has made great contributions to the fight against spam by taking various legal actions, and securing what have since amounted to landmark decisions," observes EuroCAUCE Chair George Mills. "It would be a shame for AOL to effectively throw a lot of good will away by opposing what amounts to consensus among Internet professionals and users."

AOL has always been a strong participant in the direct marketing scene, as many a recipient of the famous 'bisks' would attest. Observers also note that AOL desires to be able to spam its own subscribers without possible interference from law enforcement agencies, but at the same time is not about to let outsiders get a free ride and spam the customer base. "This is entirely consistent," notes Mills, "in the same way that farmers protect their crops and livestock from pests and predators. The plants and animals still get eaten, though."

At the end of the day, AOL's relations with its customers are between AOL and those customers, and are properly the subject of a contract. This includes sending advertisements to customers, should that be part of the contract. The authorities need not get a look-in here. We would hope that AOL would join the rest of the community responsible for building and maintaining the Internet in lobbying for simple and enforceable legislation to cope with the menace caused by UCE. AOL's deep pockets have made it possible to make 'creative' use of existing laws, something often beyond the means of ordinary users and smaller providers. Simpler legal remedies could reduce everybody's costs, including those of a provider whose own reckoning estimates that 30% of its email traffic is spam.
 

Italian Radicals Spam

The Radical Party of Italy led by former European Commissioner Emma Bonino have decided to send their newsletter by email to everyone whose address they can find, without the knowledge or consent of the recipient. "The Radicals claim the legal right to send their email to anyone whose addresses are found on the Web and Usenet," notes System Administrator Furio Ercolessi.

Harvesting addresses from public spaces violates the Purpose Principle of the 1995 Data Protection Directive, according to the Working Party established by the same Directive. The addresses are placed on Web sites or form part of newsgroup postings to enable feedback about those sites or postings, not to receive spam. Even the Federation of European Direct Marketing Associations is said to agree with this finding.

"Whatever the actual legal position, what the Radical Party was doing is utterly reprehensible," observes EuroCAUCE Chair George Mills. "Imagine someone approaching you on the street, shoving a leaflet into your hand and then demanding payment for it. That's what is being done here. We would have expected better from a party which seeks to hold the moral high ground on a number of issues, and we certainly expected better from a former European Commissioner in charge of Consumer Affairs. Now the Radicals have put themselves in the same camp as the peddlers of get-rich-quick schemes, quack medicine, or pornography."

Other observers describe the Radicals' spam campaign as "just plain bad manners". The invitation to a Website in order to 'opt-out' is seen as merely a sop to deflect criticism. EuroCAUCE, along with most of the spamfighting community advises that it is never a good idea to reply to spam lest your address be sold onward and result in further spam.

Marketers to be Allowed 'One Free Bite' in Finland Despite Local Ban on Unsolicited Commercial Email

According to an article appearing in Helsingin Sanomat (5 October) the Data Protection Ombudsman and the local DMA have come to an agreement on the guidelines for electronic communications in direct marketing. One of the items they agreed on was that even though it is forbidden to send advertising email without prior permission, marketers would be allowed to ask for that permission by email.

The Chief of IT Security at the University of Helsinki, Ms. Sari Kajantie, thinks that the rules of best practice for the use of telecommunications in direct marketing, recently approved by the Finnish DMA, are unrealistic. Systems Analyst Mr. Atro Tossavainen from the Institute of Biotechnology has estimated that e-mail systems will see astronomical numbers of requests for permission [to use email for direct marketing] if the new rules come into play.

"There are nearly half a million registered businesses in Finland alone," remarks Mr. Tossavainen. A quick back-of-an-envelope calculation shows that a given recipient could have nothing else to do but deal with these permission requests every fifteen seconds every working hour of every working day for a year. The ordinary internet service subscriber would be expected to pay for the increased infrastructure and connect time this kind of traffic would cause.

Even if every Finnish business did not make use of the 'one free bite' there is nothing to stop marketers in other EU Member States from taking advantage of the Data Protection Ombudsman's generosity in making other people's resources available.

The question arises as to how the addresses for such a 'permission requesting' action are to be gathered. According to one interpretation of the rules, even visiting a website can be construed as giving permission. Says EuroCAUCE Chair George Mills, "On the one hand, we can only advise people never to keep their correct email addresses in their browsers. On the other hand, it is a violation of the Data Protection Principles to gather personal information data without the data subject's knowledge or consent, and this is just what the Finnish officer entrusted with enforcing these principles apparently cannot understand."

So far only one advertiser has seen fit to spam for permission to send further advertising. It would appear that Finnish marketers are showing far more sense than either the DMA leadership or the Data Protection Ombudsman. In addition to not wanting to lose goodwill among the online public, potential advertisers do not want to put their connectivity in jeopardy. Most, if not all, Finnish providers have clauses in their Terms Of Service / Acceptable Use Policies which forbid users from sending Unsolicited Bulk Email.