Euro MPs have voted for a relaxation of current tight restrictions on use of location data for marketing, but in other respects it looks like general “opt-in” come 2004.
Topic: M Commerce
Who: The European Parliament
When: 30 May 2002
The second and final reading of the proposed EU Directive "concerning the processing of personal data and the protection of privacy in the electronic communications sector" occurred in the European Parliament. The next stage in the EU legislative process is for the Directive to go before EU Ministers in June. Since that stage is not known to end up in substantial changes being made to directives, the Euro MPs' vote on 30 May was crucial. In the area of SMS for marketing purposes made to mobile telephones, Euro MPs did not vote through any amendments to the previous draft, so the Directive continues to provide that "the use of automated calling systems without human intervention (automatic calling machines) … or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent". In other words, for telemarketing calls to mobile phones using automatic calling machines it looks likely to be blanket "opt-in" across Europe. This leaves marketing material sent by way of text messages to mobile phones. Is this caught by the "opt-in" wording above, or is it neither automated calling nor email, thereby neatly side-stepping the opt-in regime? Some pundits take the view that commercial text messaging will escape scot-free, but others including marketinglaw.co.uk are by no means so optimistic.
A final aspect of the Communications Data Protection Directives worth noting so far as m commerce is concerned, is the section dealing with the use of "location data" for marketing purposes. This is information available to a telecoms provider as to the place where its mobile phone users are located at any point in time. Here the present position in the UK, and in most of the rest of Europe, is that location data cannot be used for marketing purposes at all unless the use is by the mobile telecoms provider in question and what is being marketed are the telecoms providers' own telecommunications services. The CDPD looks set to change all that by making it clear that location data may be used for direct marketing purposes with the explicit consent of the individual phone user in question, ie “opt-in.”. This is provided that the user has the possibility of temporarily blocking the processing of his location data at any time.
Why this matters:
The current position under the CDPD on automated calls to mobile phones (and for that matter non-mobile phones) is pretty much the same as current UK law. Under the Telecommunications Data (Protection and Privacy) Regulations 1999 these are all opt-in.