In March 2003, the DTI promised publication in August 2003 of the final regulations implementing the EU Privacy and Electronic Communications Directive. This will not now happen.
Topic: Digital Marketing
Who: The Department of Trade and Industry and the Direct Marketing Association
When: August 2003
Marketinglaw has been closely following progress towards implementation in the UK of the EU Privacy and Electronic Communications Directive. In March 2003, the DTI released draft proposals for implementation including draft regulations and invited comments by early June. At that time it was indicated that the final regulations would be published in August 2003, with a view to their coming into force, following the obligatory period of ‘familiarisation’, on 31st October 2003. This is the implementation date laid down by the EU directive.
In our July 2003 Update, we recorded that most EU states were on course to implement the directive by around the Halloween 2003 deadline. It now appears, however, that in the UK there will be delay in publication of the final regulations and quite possibly a delay beyond 31st October 2003 in their coming into force.
The latest indication from the DTI is that the regulations themselves will not be published until mid-September 2003, and ‘the Minister’ is currently considering whether to stick with the 31st October 2003 ‘in force’ date.
Why has this delay occurred? One possible factor in the delay could be a DTI proposal which was, ironically, nothing to do with the EU directive at all.
This was a proposal contained in the March 2003 consultation paper relating to telemarketing. Currently under UK law, all those contemplating marketing cold-calls must first of all check their list of telephone numbers against a list kept by the Telephone Preference Service (‘TPS’). The TPS is operated by the Direct Marketing Authority, a sister body to the UK’s Direct Marketing Association. The TPS list carries the numbers of all those individuals who have registered not to receive marketing cold calls. Note, however, that these are individuals. Companies do not have any right to register with the TPS and those planning to cold call companies as opposed to individuals at home do not have a legal obligation to check with the TPS list.
The EU Privacy and Electronic Communications Directive has nothing to say on this topic. However, in its March 2003 consultation paper on implementation of the directive, the DTI took it into its head that this would be a good opportunity to extend the Telephone Preference Service regime. The proposal was to extend the TPS to companies.
Since then, the Direct Marketing Association has been lobbying extensively against this proposal, which it believes will seriously undermine business-to-business marketing activity in the UK. As part of its lobbying, the DMA undertook an assessment of the financial impact of the proposal among its members and drafted a formal Regulatory Impact Assessment, which was submitted to the DTI.
It has been announced in recent days that following these submissions, the e-commerce Minister, Stephen Timms, has invited the DMA to meet with him and put its case forward in opposition to the proposal.
There can be no doubt that this is one of the factors behind the slippage in the timetable.
Why this matters:
Marketinglaw always had a concern that the Government was setting itself a very tight timeframe, given the initial delay in coming out with the draft regulations in the first place. In the circumstances, it only needed one or two unexpected developments to throw out the timetable and so it has proved to be.