Internet service provider AOL recently bemoaned the lack of any spammer prosecutions in the UK. Others have demanded the scrapping of the present ‘B2B exemption’ from the ‘opt-in’ rule for unsolicited marketing emails. Do they have a point?
ISP AOL put out a clarion call for more enforcement of the UK’s digital marketing laws and others called for a tightening of the rules.
The rules that some specifically wanted tightened were those relating to unsolicited marketing messages sent by e-mail or to a mobile phone. Under the relevant regulations (the Privacy and Electronic Communications (EC Directive) Regulations 2003) it is permissible to send unsolicited marketing e-mails to the office e-mail addresses of employees of limited companies without their prior opt it consent unless and until the recipient takes advantage of the opportunity to unsubscribe that must be given with every message.
The belief of some is that this carve-out from the general “prior opt in” rule is being abused and they would like to see the UK falling into line with the roughly 50% of EU member states who do not have any B2B exemption from prior option.
As regards lack of enforcement, AOL does have a point. The new laws have been in force now for nearly 18 months and there has not been a single reported case of the 2003 Regulations being enforced through the courts. Here, AOL is not the only concerned party. The European Commission is exercised at the lack of digital marketing rule enforcement activity in the UK and is contemplating taking the UK to court over the issue.
Why this matters:
It was certainly strange for a harmonising instrument to give member states the option of choosing whether to opt in or opt out of B2B opt out. This is what it did, however, and as a result Europe is split virtually down the middle between states who have B2B opt-out and states who have B2B and B2C opt-in with the prior consent requirement relaxed only for the so called “customer soft opt-in”.
France for instance has recently introduced B2B opt out and in so doing followed the example of Holland. Neither of those countries, however, have the additional restriction on B2B opt out which was introduced here in the UK by way of the CAP Code. This restriction makes it clear that although perfectly legal, an unsolicited B2B marketing e-mail sent to a limited company employee will contravene the CAP Code if it is promoting personal as opposed to business products.
UK towards blanket opt-in?
As regards a possible UK move to blanket opt in (leaving the only exception the customer soft opt in) we do not believe that this is going to happen in the short to medium term. Like most EU instruments, however, the EU digital marketing directive requires that how it has been operated by member states should be reviewed five years after it came into force and it may be that as a result of that, there will be an extension of opt in before the end of the decade.
On enforcement, the UK’s Information Commission has asked the government to give it more powers and although warm noises have been made, there is no indication that this will be happening any time soon. Ofcom has residuary powers under the Communications Act to take action in respect of persistent abuse of telecommunications system, but as yet there have been no signs of any such action being taken against delinquent e-mail marketers.
As ever, however, there can be no guarantees that those who choose not to comply will escape enforcement, however unexpected, and the fact that others have got away with it is no defence.