Here on marketinglaw, we have been complaining about a glaring inconsistency between the CAP Code, which governs all UK email marketing, and new privacy regulations in force 11 December 2003. ‘Not so’ says CAP, but are they making things even worse?
In March 2003 the Committee of Adverting Practice published a new edition of the self-regulatory code for non-broadcast adverting. This is the CAP Code of Advertising, Sales Promotion and Direct Marketing ("Code"). The Adverting Standards Authority adjudicates on alleged breaches of the Code.
The new Code includes a provision which appeared to anticipate the up and coming implementation in the UK of the EU Directive on Privacy and Electronic Communications.
We say that the provision appeared to anticipate the new Directive. This is because, as also reported at the time on marketinglaw.co.uk, the new Code appeared to ignore a significant carve-out from the full rigor of the email marketing opt-in rule which featured in the EU Directive. This related to unsolicited commercial e-mail or SMS which was not sent to "individual subscribers". In other words, applying the definitions of these terms featuring in the Directive itself, unsolicited marketing e-mail or text sent to the e-mail addresses of employees of limited companies was not caught by the new opt in/soft opt-in rules at all.
This carve-out has been faithfully followed in the UK regulations which are to implement the Directive as of 11 December 2003, so that the law for this B2B category of unsolicited marketing email will stay as it is now, namely opt-out. Yet, as of today, the Code provisions remain unchanged. As such, they make the self regulatory position under the Code much stricter for e-mail and text marketers than it is under the law, pre and post 11 December 2003.
When we first pointed this discrepancy out on marketinglaw.co.uk, the Committee of Advertising Practice demanded a right of reply and clarification. We granted this to them without question. In their reply, which marketinglaw published in full, they indicated that the Code would not be tougher on marketers than the Directive required because "the new rule is likely to apply to e-mails and SMS direct marketing sent to people in their private capacity… but not when sent to individuals in their professional capacity".
The CAP described this gloss on the wording of the Code as a "likely interpretation".
Since then, the CAP has indicated that a revised version of the Code will be published "early next year" which will take this into account. It seems there is also a CAP Help Note on Mobile Marketing currently in production, which will apparently take a similar line. It will state that if a text or other mobile message is to a company employee on their company mobile phone, prior "explicit consent" will only be required if the message relates to "consumer products."
However, it remained quite unclear as to how this could be justified under the EU Directive, how it is anything other than a contradiction of the Code itself rather than an interpretation of it, and how it could possibly make life easier, as opposed to even more complex, for marketers trying to compliantly send email.
In its recently published Guidance on the new Electronic Communications Regulations, the Information Commissioner echoes this by stating as follows:-
"The fact that an e-mail sent to a corporate subscriber's address is obviously aimed at an individual (because it promotes a product that is for personal/domestic use) is not, for the purposes of the regulations, relevant. E-mail communications sent to a corporate subscriber are simply not covered by the regulations except insofar as there is a requirement to identify the sender and to provide contact details".
Why this matters:
It is clear that the CAP has been aware of these discrepancies for many months. Despite this, we continue to have a Code which is quite different to the law on unsolicited direct marketing e-mail and SMS. To make matters worse, the body responsible for drawing the Code up is saying that its wording is "likely" to be "interpreted" in a manner which, so far as marketinglaw.co.uk can see, contradicts rather than clarifies the words in para 43.4 of the Code.
It was marketinglaw's understanding that one of the beauties of the Code, as opposed to any relevant law or regulation, was that it could be quickly and easily updated to take account of extraneous developments.
This does not seem to apply in this case, so at present, as from 11 December 2003, those wishing to send unsolicited commercial e-mail to employees at their company e-mail address will face the following situation:-
1. as a matter of law they can continue to do this unless and until the recipient notifies them that they wish to opt-out; but
2. under the Code's provisions, they cannot send a single message to this individual without that person having previously "opted-in" to receiving such messages; but
3. under the CAP "likely interpretation" of the Code they can, despite the clear effect of the wording under point 2 above, continue sending unsolicited marketing e-mails to company employees provided the message is not sent to that person "in their private capacity" and/or relate to "consumer products".
We trust that marketinglaw's readers are now all clear on the position, despite a continuing absence of any rational argument as to why the CAP thinks it appropriate to go out on a limb and introduce requirement 3 and as to why it would not be easier all round for the CAP to simply hold their hands up, admit a mistake, and send a "correction slip" to all those who received the original Code, amending it to say that "opt-in" does not apply to emails or texts to company employees.