As feared, Euro MPs have voted for a form of opt-in for e-mail marketing in Europe, but the devil, or perhaps the angel, is in the detail.
Topic: Email Marketing
Who: The European Parliament
When: 30 May 2002
Where: Brussels
What happened:
Euro MPs completed their second reading of the Communications Data Protection Directive (otherwise known as the "proposal for a directive … concerning the processing of personal data and the protection of privacy in the electronic communications sector".) The "CDPD" now goes before the EU Council of Ministers in June with a view to its final adoption and its provisions becoming law in all EU member states by October 2003.
The Directive deals with email marketing, where there had been fears, during the various stages of the law-making process, of an EU wide "opt-in" regime for unsolicited commercial email. Following the 30 May 2002 vote, this fear has proved justified, but there are two significant carve-outs.
First, there will be an "opt-out" regime when it comes to sending commercial email to an email address which has been obtained by the sender of the email from its own customers "in the context of the sale of a product or a service". Another compliance requirement here is that the customer, on receipt of the email, must be "given the opportunity to object, free of charge and in an easy manner," to any future use of their email address in that way.
The second carve-out relates to the entity who receives the telephone bills for the line on which the email address is held. The above compulsory EU-wide "modified opt-in" regime will not apply where the subscriber is other than a natural person. In other words, where either a company or partnership pays for the relevant telephone line EU member states can decide whether to operate an opt-in or opt-out regime. The effect of this appears to be that for unsolicited commercial email to most individuals at their desk at the office, the regime in the UK is likely to continue to be what it is today, namely opt-out. The CDPD does make it clear, however, that EU member states must ensure by other means that the "legitimate interests of subscribers other than natural persons with regard to unsolicited communications are protected."
Why this matters:
This "modified opt-in" or “soft opt-in” regime for personal email addresses is clearly going to have a significant effect on email marketers and render virtually impossible the use of third party-provided email address lists for commercial email purposes. Even where an email marketer is sending a message to an existing customer, on an "opt-out" basis, the 30 May vote means that particular care will have to be taken. Before that vote, the "customer email address" had only to have been obtained "in the context of the purchase of a product or a service" for it to be usable thereafter on an opt-out basis.
Under the new 30 May wording, the email address will have had to be obtained in the context of the "sale" of a product or service, not its purchase. One suspects that the intention of this was to avoid marketers arguing that even though they had not actually sold a product in the past to the individual whose email address was being used for commercial email, this was still useable on an opt-out basis because the individual in question had at least expressed an interest in purchasing the product or service in question. This might be evidenced, for instance, by way of information provided by a cookie as to visits to particular parts of the site by the individual in question. Now all that appears to have been swept away by the amendment, since the email address in question has to have been obtained in the context of "the sale of a product or services". Accordingly, it appears that there will have had to be at least one sale actually effected to the individual in question for this particular carve-out from opt-in to be available.
Ending on a more positive note, one amendment voted through on 30 May appears to relax the requirements in relation to existing customers. Whereas the wording before seemed to require that the email address in question had to have been obtained by the sender of the commercial email "directly" from its customers, as opposed to through an agent or other third party, the wording voted through on 30 May has now lost the word "directly" so that the email address has only to have been obtained "from its customers". One possibly crucial aspect still remains unclear, however, namely whether the removal of the word "directly" allows a manufacturer who has obtained an email address of a purchaser via a retailer can regard it as an address of its own customer as opposed to the address only of the retailer’s customer.
