New draft UK regulations to implement the EU Privacy and Electronic Communications Directive offer a spectacular variety of new rules and regulations affecting direct marketing. But how are they going to be enforced?
Topic: Selling on-line
Who: The Department of Trade & Industry
When: March 2003
The Department of Trade & Industry published its consultation document on the implementation of the EU Directive on Privacy and Electronic Communications. The timetable calls for all comments on the proposed regulations by 19 June 2003, with publication of the final rules in the summer with a view to their coming into force by the required date in the EU directive, namely 31 October 2003. The current proposed name for the regulations is the "Privacy and Electronic Communications (EC Directive) Regulations 2003 ("PECRs")".
Clearly one aspect of these regulations which is of crucial importance is the area of enforcement.
So far it is right to say that most of the current regulations impacting on the digital marketing process, such as the distance selling and e-commerce regulations, are more honoured in the breach than in the observance. Others say, moreover, that so far as e-mail marketing is concerned, no legal solution can ever deal with the problem of SPAM, where technical solutions courtesy of software developers are the only way forward for effective de facto regulation.
Be that as it may, the DTI is clearly concerned that the current regime "raises particular challenges". The current enforcement picture, by way of the issue of information and enforcement notices by the Information Commissioner under the Data Protection Act 1998, is long winded and allows the alleged infringer to continue infringing throughout the lengthy notice-serving and appeal process (in most cases lasting many months) and then simply do a deal at the doors of the court at the last moment, thereby avoiding any financial penalty. As the DTI comments, "for legitimate marketers with a reputation to maintain, the threat of an enforcement notice may be a real deterrent; for others it may not be (and is unlikely in itself to create the kind of publicity that spreads subscriber awareness of their rights and the safeguards available to them)".
The DTI looks at alternative models. The closest parallel it identifies is the sanctions that will be available to OFCOM under the new Communications Act. In the case of the new offence of persistent misuse of electronic networks, for example, OFCOM will be able to impose a direct administrative fine of up to £5,000 and or seek an injunction to ensure that that the terms of enforcement notices are complied with. Separately, the Office of Fair Trading or Trading Standards Authorities or other nominated bodies such as the Consumers' Association now have the power to apply to the courts for the issue of "Stop Now" orders where breaches of consumer protection legislation lead to harm to the collective interests of consumers.
The DTI seeks views on these proposed alternative models, but as the draft regulations stand at present, they offer no hope of any significant change to the current regime, where the Information Commission is hide-bound by the problems we have identified above.
Why this matters:
As the DTI comments, for consumers to be made more aware of their rights under these extensive new regulations and for them to be taken seriously by marketers, there has to be a ramping up of the current projected enforcement regime. The draft regulations do confer on consumers a right to pursue marketers in the civil courts for any damage they suffer as a result of any contravention of these regulations, but where one is talking about perhaps an individual e-mail communication, this is hardly going to trouble the serial infringers.