After September’s abortive European Parliamentary vote, the sub committee asked to produce a compromise solution has pronounced surprisingly quickly.
Topic: E-mail marketing
Who: The European Parliament and the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs (“CCFRJHA”)
When: 11 October 2001
Following September 2001’s shambles of a European Parliament (“EP”) vote on the e-mail marketing provisions of the draft Communications Data Protection Directive (“CDPD”), the CCFRJHA was asked to go away and come up with a compromise. Gloomy predictions of months and even years of further delay and uncertainty have now been confounded by some swift follow-up proposals. The idea is that these will break the deadlock and see the CDPD signed off and due for implementation across the EU by early 2003. Not a bad idea since the CDPD covers a lot of important issues apart from commercial e-mail.
Consistent with the September EP vote, the current proposal is still for blanket “opt-in” for marketing e-mail. In other words, no e-mail message can be sent for marketing purposes unless the individual has given its prior consent. However, along with the existing carve-out where the subscriber to the relevant internet service is not an individual (which disapplies the opt-in rule to most of us receiving marketing e-mails at the office) there are now three suggested glosses on this to make the regime palatable to all sides.
First, it is proposed that marketing e-mail opt-in will not be compulsory for about a year after the rest of the Directive is in force across Europe. Also to come into force at the same time as the rest of the Directive, it is suggested, will be a form of what might be called “permission opt-out” viz: “where companies obtain communication details for electronic mail directly from customers, they may use these communication details for direct marketing of products or services by the same company, provided that customers are given the opportunity to stop, free of charge and in an easy manner, such use of communication details at the occasion of each message.”
The third proposal is that six months after “opt-in” becomes compulsory, individuals will have the right to ask their ISPs to provide technical solutions which allow them to “view the sender and subject line of electronic mails and also to delete them, without having to download the rest of the content or any attachments”.
This last rule will overlay the “instantly recognisable as a marketing message” rule due to be law across Europe in early 2002 courtesy of the E-commerce Directive.
Why this matters
Clearly the Brussels mandarins are anxious to see the CDPD signed off and all the signs are that further changes beyond these proposals are unlikely to be given a sympathetic ear. If these are adopted, there will still be time for e-mail marketers in opt-out states such as the UK to “make hay” until the full opt-in is imposed, while the “permission opt-out” gives marketers a crumb of comfort and should pacify consumer groups.