There’s cause for relief for interactive marketers in proposed regulations implementing the EU E-commerce Directive. It’s all in the enforcement, or lack of it.
Topic: E-mail marketing
Who: the UK Government
When: May 2002
With only a matter of weeks to go before the EU E-commerce Directive becomes part of UK law, the UK government's attitude to its appropriate impact on digital marketing becomes clearer. The most important factor in its thinking in this area is that in the overall scheme of things, this particular Directive and its implementation in the UK is destined to play only a bit part in the epic story of the EU's attempts to harmonise legal controls over digital marketing.
Far more important in the DTI's view are the existing controls available through the Data Protection Act and related legislation. Also of potentially far greater importance is the up and coming EU "Communications Data Protection Directive". As previously reported in “marketinglaw”, this is likely to have a significant impact on various types of digital marketing, although it still appears to be some months before the directive will be signed off, and it is unlikely to have the force of law across Europe until 2004 at the very earliest.
In the meantime there is the E-commerce Directive. Previous marketinglaw reports have indicated that the Directive has three principal strands relating to interactive marketing.
First of all there is the requirement that unsolicited commercial e-mail should be recognisable as such as soon as it is received so as to facilitate immediate deletion without having to open it up. Secondly there are further disclosure requirements which apply to all commercial e-mail, whether unsolicited or solicited. These include rules that the terms and conditions of any promotion operated through the e-mail marketing campaign are either clearly and unambiguously stated within the text of the e-mail itself, or very easily accessible. Ideally one presumes this means by way of a hypertext link. Thirdly, the Directive required EU member states to introduce legislation ensuring that those using e-mail or mobile number lists should regularly consult "opt out" lists kept by those operating relevant preference services.
Looking at the proposed UK regulations which are designed to bring the Directive into force here, this latter "opt-out list" rule is completely absent. Here, the DTI says, they have deliberately chosen not to exclude it. This is because, they say, the practical impact of existing data protection legislation in conjunction with currently operated voluntary preference services, is to effectively impose such an obligation on digital marketers in any event.
Separately, there is the question of enforcement. The draft regulations as they stand are noticeably silent as to how the various disclosure and "immediately recognisable as commercial e-mail" rules will be enforced.
The DTI has two answers to this. First of all, by the autumn of 2002 it is intended that the existing powers of the Office of Fair Trading to apply to the court for "Stop Now" orders in respect of conduct which is contrary to certain identified consumer protection laws will be extended to these new regulations. The effect of this will be that if a recognised consumer body can show that any breach of the disclosure requirements in the regulations in e-mail marketing results in "harm to the collective interests of consumers", Stop Now injunction proceedings may be started.
The second answer is that under the Regulations as they stand, once they come into force in the Summer of 2002, enforcement can be by way of an action for breach of statutory duty. Decoded, this means that any individual who can argue persuasively that he or she has been damaged by a failure to comply with the rules can sue the sender of the relevant digital marketing material for damages in the civil courts.
Why this matters:
As will be seen in another report appearing this month in marketinglaw, a recent US case shows that it is not going to be easy for consumers to argue that they have sustained "damage" or "harm" as a result of breaches of rules of this kind. E-mail marketers may be forgiven for thinking, therefore, that these proposed regulations are going to lack teeth, and that if their competitors are disregarding these new rules in the same way as compliance with the existing distance selling regulations is still very rare, they might just as well take the risk of ignoring the rules and seeing how the land lies. On the other hand those advising them will say that since compliance should not be rocket science or impractical, it is worth toeing the line. The macro rationale is that the more responsible digital marketers show themselves to be now, the more persuasively they can argue in the future against stricter regulation of these activities.