EU Council Votes to Ban UCE

A window of opportunity has been opened by the Council in formulating its recommendations concerning the proposal for a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector. The practice of 'spamming' or sending bulk commercial messages electronically to people who have never requested them but nevertheless are expected to bear the costs of receiving them is to be banned. The Council-inspired definition of "electronic mail" is sufficiently broad to include SMS and similar systems based on mobile phones.

Parliament had attempted to promote 'national choice' in relation to Unsolicited Commercial Email whilst implementing a complete ban on similar practices using the Short Message Service. Further extensions and developments in messaging systems using mobile telephony would not necessarily be covered because the language is too specific. Other amendments relating to email were similarly too technology-specific. In any case, Parliament had wilfully chosen to ignore the Commission's assessment of the negative impact on the development of the internal market of having divergent national regimes in the area of promotional use of electronic messaging.

"The Council has wisely decided to replace Parliament's recipe for chaos with something eminently reasonable," notes EuroCAUCE Chair George W. Mills.

The version proposed by the Council:

• bans the use of "electronic mail" (email, SMS, etc) for advertising without the prior consent of the recipient
   
• allows companies to send promotional material to addresses or numbers given by their owners in the course of arranging a purchase, but only for their own similar products and only if they make it possible for the recipient to withdraw consent at any time
   
• provides for 'opt-in' or 'opt-out' for advertising by other means (non-automated voice telephony) according to national preference
   
• prohibits disguising or concealing the identity of the sender
   
• requires a valid address for opting out of further communications
   
• directs that interests of legal persons (organisations) be "sufficiently protected"
   
• calls for a review of impact and further developments after three years

"It is significant that the European Commission, who must oversee the implementation of the directive, and the member states' Communications Ministries represented in the Council, who must impement and enforce the resulting national legislation, both support a ban on Unsolicited Commercial Email," observes Mills further. "We would urge the Members of the European Parliament to go along with the Council's recommendation."

The Common Position of the Council is expected to be communicated by the Commission to the Parliament for further consideration around the beginning of February 2002.