As part of a consultation on possible amendments to the 1997 EU Distance Selling Directive, the European Commission seems determined to quash one of the few remaining Euro laws allowing opt out digital marketing. But will it make any difference?
Who: The European Commission
When: September 2006
The European Commission has started a consultation on possible amendments to the Distance Selling Directive 97/7/EC. These are for the most part intended to deal with inconsistencies in implementing the Directive across the various Member States (in areas such as the "cooling off period" within which consumers can unconditionally cancel a distance contract, which can vary from seven working days to fourteen days) and changes in market conditions since the Directive was signed off.
Another case identified where a change may be advisable involves an inconsistency between this Directive and another, more recent Directive.
The Directive in question is the Privacy and Electronic Communications Directive (2002/58/EC) ("PECD") and the inconsistency relates to rules on commercial email.
Semi blanket opt out for all direct marketing?
Article 10 of the Distance Sales Directive requires at 10.1 an "opt in" regime for use of automated calling systems for telemarketing and also for fax marketing. Article 10.2 , however, goes on to require Member States to ensure that "means of distance communication other than those referred to in [10.1] which allow individual communications may be used only where there is no clear objection from the consumer."
The new EC consultation contrasts this with Article 13 of the PECD, which, except in cases of commercial emails to "corporate subscribers" (employees of limited companies) and to customers, introduces an "only with prior consent" regime for unsolicited commercial email. For other forms of distance communication, Member States are allowed to choose opt in or opt out.
There is strangely no further comment on the issue in the consultation paper but clearly there is potential for confusion here between an earlier directive apparently introducing a default "opt out" rule for commercial email and most other distance marketing channels and a later measure turning this on its head for email and suggesting opt in may be permissible for other direct marketing tools.
Why this matters
Clearly the Commission thinks repeal is the best fate for the earlier measure, but is there reason for concern at the possible demise of one of the few remaining Brussels measures apparently encouraging default "opt out" for direct marketing?
We believe there is and there should be hesitation and reflection before any repeal, and perhaps more focus on a review of other marketing channel opt in/opt out rules across Europe with a view to harmonisation.