Are this country’s email and SMS marketers justified in complaining about an over-restrictive regime here for interactive marketing? Marketinglaw’s editor Stephen Groom suspects not and draws comparisons with other EU states at
It has now become something of a ritual for UK marketers to complain about over-restrictive Brussels legislation hamstringing their efforts to make an honest buck, and of competitors of theirs getting away with murder in other countries while here in the UK we suffer under the cosh of petty fogging bureaucrats and desk fliers. But is this a fair picture?
A brief voyage around the situation for digital marketers in other European countries might suggest otherwise.
Currently in the UK the Advertising Standards Authority is the only body that is enforcing digital marketing laws with any degree of vigour. Even when it does take enforcement action moreover, it has no power to mete out fines, only to publish "complaint upheld" findings, require the advertiser to pre-check all future copy with the Committee of Advertising Practice and in extreme circumstances make recommendations to the Office of Fair Trading to apply to court for injunctions.
Compare this situation to Germany for example, where a non-complying marketer can be taken to court, not by Trading Standards or other public enforcement bodies, but by its own competitor. Such action can be taken under German's notorious and wide reaching unfair competition laws. What is more, the action can be taken extremely quickly, with the court prepared to grant an injunction banning the competitor's offending marketing material within a matter of a few days at most, without necessarily bothering to hear the argument for the defence.
Take also Spain and Italy, where the data protection authorities have much greater powers to impose fines against non-compliant marketers than the resource strapped and red-tape-bound office of the Information Commissioner in Wilmslow, Cheshire
B 2 B
UK digital marketers also have it comparatively easy when it comes to B to B email marketing. The EU directive underlying the UK's Privacy and Electronic Communications (EC Directive) Regulations 2003 allowed EU member states to decide whether or not to opt for "B to B opt out," or to put it another way an opt out as opposed to an opt in regime for digital marketing messages sent to employees of limited companies or "corporate subscribers".
In the event, roughly half of the EU's membership went the opposite way to the UK and plumped for B to B "opt in," so another area in which UK marketers have had it soft.
The soft opt-in exemption
Under the UK's rules for digital marketing, "prior opt-in" is not necessary before sending marketing e-mails or SMS provided the so called "soft opt-in" exemption applies.
This occurs in situations where an e-mail address has been collected by a marketer "in the course of a sale or negotiations for a sale." If at the same time, the marketer informs the individual that they may wish in future to send the individual marketing e-mails or SMS and gives the individual a simple easy and free to use option of opting out at that point, then provided the future digital messages are promoting the marketer's own similar goods or services and an opt out opportunity is given every time, the marketing can be compliantly conducted without an express prior opt-in.
In contrast to this, a number of EU member states implemented the "soft opt in" exemption in a different way. Instead of allowing it to arise where there were negotiations for a sale, they restricted the exemption to cases where an actual sale had taken place.
The upshot of this is that whereas in the UK, with the Office of the Information Commissioner's blessing, prize promotion sponsors can collect competition entrant data and apply "soft opt-in" purely on that basis because the OIC regards this as "negotiations for a sale", marketers in Germany and Holland for example, can only use the soft opt-in exemption if there has been an actual sale to the individual.
Do the rules only apply to "marketing" communications?
It is quite clear under the UK's rules for digital marketing that the opt-in/soft opt-in regime will only apply to "marketing" messages. Accordingly, if a message is a service announcement, for instance, a communication of a bank balance to an account holder by a bank, then the digital marketing rules will not apply at all.
In other EU member states, marketers do not have it so easy. In Holland, for example, the opt in/soft-opt in regime will apply not only to commercial messages but also to "idealistic", and "charitable", communications. Whilst the "charitable" extension is not surprising and all the indications are that here in the UK messages seeking donations for charitable objects will be caught by the digital marketing rules, the "idealistic" category certainly does not apply in the UK and seems extremely and dangerously vague.
So here are just a few examples of why UK marketers should think themselves extremely lucky that they are operating here in the UK and should make hay while the sun shines.