In November 1999 the UK Government published proposals for implementation of the EU Distance Selling Directive.
Topic: Data privacy
Who: UK Government and the Data Protection Commission
When: September 2000
Where: London and Wilmslow
What happened:
In November 1999 the UK Government published proposals for implementation of the EU Distance Selling Directive. Following the Directive, a statutory opt-out/ preference-style scheme was proposed for commercial snail mail. As with the existing fax and telephone preference schemes run by the Direct Marketing Authority, a statutory central list would be kept of all those who did not wish to receive unsolicited direct mail. Marketers would be obliged to clean their lists periodically against this. For unsolicited commercial email, the DTI sat on the fence. The Directive entitled states to choose opt-out or opt-in (where emails are forbidden unless consumers have indicated in advance that they wish to receive such communications). The UK government was unsure which to plump for. Indeed so undecided were they that they included in the draft regulations two alternative sets of rules. One was on the assumption that "opt-out" was chosen, the other was based on "opt-in."
It was noted that a number of EU states had already gone for opt-in (see our "Directive Special" at a glance guide to which state’s gone for what in the International newsfeed section under "Selling on-line, data privacy and comparative advertising.") but there were enforcement concerns as most SPAM was thought to be coming from outside the EU. Opt-out on the other hand was thought to give consumers only partial protection, so views were urged while the government havered.
By late May 2000, the required 4/6/00 implementation date was close, but still no decision had been made, and it was continuing uncertainty over these areas that was cited as one of the principal reasons for what was announced as a likely delay until later in the year before the Regulations could be finalised and brought into force.
So it was with baited breath that commentators leafed through the finalised Regulations on publication in early September 2000, only to find absolutely nothing on the topic at all, not even a mention in the "Explanatory Note."
From this one can only assume that the decision was for a non statutory opt-out in both cases. Maybe this was on the basis that the snail mail Mailing Preference Service had been up and running and operating reasonably effectively for some years, and that in the email arena, there were sufficient controls and checks through the new Data Protection Act and the DMA’s January 2000-launched Email Preference Service to satisfy the Directive’s requirements, not to mention the raft of further measures threatened by further EU-driven legislation in the pipeline. See the items on the Ecommerce Directive and the proposed "Directive concerning the processing of personal data and the protection of privacy in the telecommunications sector" in our Preview section.
Needless to say, the Data Protection Commission has expressed dismay at this turn of events, particularly as the Email preference Service has in their view not yet proved itself to be effective.
Why this matters:
This is a remarkable victory for the Direct Marketing Association and others who lobbied for the industry against over-regulation. Unfortunately, as indicated above, the war is not yet over and the onus is still very much on the industry to conduct itself in such a way as to enable the DMA and similar organisations to put a continuing and strong case for self-regulation. There is also the considerable number of EU states who have chosen statutory opt-in for commercial email, at least in a B2C context, so marketers promoting across Europe must still take care.
