Proposals for implementing the fax marketing provisions of the EU Privacy and Electronic Communications Directive try to define “unsolicited”. Do they succeed?
Topic: Fax marketing
Who: The Department of Trade and Industry
When: March 2003
Where: London
What happened:
The DTI published its consultation document on implementation of the EU Directive on Privacy and Electronic Communications, due 31 October 2003. Here we focus on what it has to say about fax marketing. Under the current UK regime, the use of unsolicited faxes for marketing purposes is illegal if the fax is sent to a line where an individual pays the bill, unless that individual has previously opted in to receiving such communications. As an additional protection individuals may also register with the "Fax Preference Service" operated by the Direct Marketing Authority. Current regulations also allow corporate subscribers to register with the FPS. They may also opt-out of receiving such communications on a case by case basis, by contacting the marketer in question. Also, anyone direct marketing by fax must identify themselves and provide either a free phone number or a postal address at which they can be contacted.
Between 1999 and February 2003 registration with the FPS has risen from 18,577 to 1,176,546. So far as compliance is concerned, a handful of companies are responsible for the majority of the complaints made to the DMA over fax marketing. In 2002, these virtually doubled over the previous year, rising from 36,500 to 64,000. So far as the Information Commission is concerned, complaint levels are more static, having been 2,435 between 1 April 2001 and 31 March 2002 and 1,339 between 1 April 2002 and 27 February 2003.
However, there have been far more complaints about breaches of the Fax Preference Service than in respect of beaches of the Telephone Preference Service and a much higher proportion of complaints generated by the same marketers, suggesting less willingness to comply with the rules. The cheapness of the medium clearly is a factor here and the DTI accepts in its consultation document that many marketers make a conscious decision to risk breaking the rules. All in all, the DTI suggests that "technical and network-based solutions" are becoming ever more important, for instance automatic barring facilities on incoming faxes.
Against this backdrop, the draft PECRs suggest no significant change to the current regime. It does not seem currently to be anticipated that individuals will be able to continue to "re-inforce" their opt-in rights by registering with the Fax Preference Service, though the plan may be that this can continue to happen outside the Regulations. However there are some wrinkles in the current draft which also crop up in the context of other types of marketing and are worth a look.
First of all, so far as faxes to individual subscribers are concerned, if these are unsolicited they will be illegal unless the subscriber has "previously advised the caller that he consents for the time being to such communications being sent". As ever, since "consent" is regarded by bodies such as the Information Commission to be connoted by something more than failure to tick an opt-out box, the safe approach here is to require a specific, express "opt-in" although the wording would appear to allow for something part way between the two.
This "opt-in" regime will not apply, however, if the fax is solicited. This will be the position, the draft regulations tell us, where the subscriber "has notified the caller that he does not object to such communications being made… for direct marketing purposes on that line". So it now looks likely that it will be critical to be able to determine what the difference is between "advising the caller that one consents" and "notifying the caller that one does not object". If the first is equivalent to express opt-in, for example actively ticking a box to say that one wishes to receive such communications, then can "notification of non-objection" occur by a less active route?
Could it occur, for instance, by way of failure to tick an opt-out box? If the answer to that is yes, then we appear to have a dual "opt-in/opt-out" regime in prospect for direct marketing by fax. Surely this was not intended?
Turning to corporate subscribers, we have a third species of notification of consent/non-consent. By this we mean that unsolicited faxes to corporate subscribers will be illegal if the subscriber "has previously notified the caller that such unsolicited communications should not be sent on that line". It will also be illegal if the corporate subscriber has previously registered with the Fax Preference Service. But how does a company "notify the caller that faxes should not be sent". Clearly a simple letter from the subscriber to the marketer saying that it does not wish to receive marketing faxes will suffice, but can this be done in other ways, and how might these ways differ from "notification of non-objection" and "advising the caller of consent" (to use the two other species of consent/objection set out in the draft regulation)? All very confusing.
Why this matters:
On the face of it, and looking at the DTI commentary on the draft regulations, it does not appear that major changes are intended so far as fax marketing is concerned. However, determining the difference between "solicited" and "unsolicited" faxes now appears to be potentially crucial. Or is it? Boiling it down, a marketing fax will be OK if the recipient has previously advised the sender he consents, even if it is unsolicited, and it will also be OK if the recipient has notified the sender he does not object, because here it will be solicited.
Confused? We certainly are and worryingly, the same problem also arises in the context of tele-marketing and e-mail/SMS marketing. One imagines this will be a topic that features prominently in the consultation process.
