At a recent Direct Marketing Association conference, the Assistant Information Commissioner reported low levels of complaints about unsolicited commercial email and also updated the audience on current email law enforcement activity. Stephen Groom reports.
Topic: Email marketing
Who: Assistant Information Commissioner
Where: DMA's 7th annual Data Protection Conference, Central London
What happened:
At the Direct Marketing Association's 7th annual Data Protection Conference in March 2007, , Assistant Information Commissioner Phil Jones was asked, at the end of his talk on "The Threat of the Surveillance Society," about the Information Commissioner's Office ("ICO") and an activity it has principal responsibility for regulating in the UK, email marketing.
The question was about the number of cases in which the ICO was currently engaged in which it was taking enforcement action against any business involved in email marketing for breach of the Privacy and Electronic Communications (EC Directive) Regulations 2003 ("2003 Regulations"). Amongst other things, these Regulations lay down the law as to when an unsolicited marketing email needs a prior opt in before it can be sent and when it can sent unless and until the recipient opts out.
Phil's reply was that he might be wrong, but so far as he knew the number of cases in which the ICO was currently engaged in such enforcement action was precisely zero.
He added that this may not be unconnected with the fact that in terms of the sheer numbers of complaints the ICO received from members of the public about allegedly illegal types of marketing, telephone marketing was the category most complained about by far, with fax marketing next and email marketing at what he called a surprisingly low level compared with the ICO's expectations at the time that the 2003 Regulations came into force in December 2005.
Why this matters:
The Assistant Commissioner's reply on the amount of enforcement action currently underway was hardly surprising given the absence of any reported case in which the ICO has taken substantive enforcement action to date.
Three alternative reasons for this sorry state of affairs come to mind:
1. the email receiving public don't give a flying spam sandwich about non compliant unsolicited email marketing;
2. the email receiving public are for the most part unaware that the ICO, as opposed for instance to the Advertising Standards Authority , is the body to call about spam; or
3. no breaches of the 2003 Regulations have taken place since 24 March 2003.
Given possibility #3 is shall we say unlikely, our money is on possibility #2, but whatever the reality, it is clear that for now at any rate, the ICO is leaving the enforcement of opt in and opt out and other laws relating to unsolicited direct marketing emails to others.
The "others" are firstly the Advertising Standards Authority, by way of enforcement of relevant provisions of the CAP Code of Advertising, Sales Promotion and Direct Marketing and secondly those suffering damage as a result of non compliant emails, who are by all accounts increasingly taking civil proceedings in the courts for damages and injunctions. See reports elsewhere on markektinglaw.co.uk
