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United Kingdom: Data Protection and Electronic Direct Marketing.

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Vincent
AutorEduardo Ustaran
Cargo). Solicitor in the Computer, Media & IP Group at Paisner & Co, London.

The UK Government has missed another opportunity to regulate unsolicited commercial e-mails (“UCE”). This means that, in the absence of a specific regulatory regime dealing with electronic direct marketing, uncertainty will continue for both consumers and businesses. This article looks at the UK legislation currently applicable to UCE and suggests a possible way forward for businesses wishing to carry out this type of marketing.

The story so far

In 1994, the European Commission drafted a Directive aimed at addressing privacy concerns raised by the development of new digital technologies. This Directive (known as the “Telecoms Data Protection Directive”) was subsequently adopted in 1997. Article 12 of this Directive required Member States to take appropriate measures to ensure that direct marketing “calls” were not allowed either without the consent of the recipient or, at the very least, in respect of individuals who did not wish to receive such calls.

When this Directive was implemented in the UK, the Department of Trade and Industry (“DTI”) decided to exclude e-mail from the application of the provisions governing unsolicited calls for marketing purposes. The Explanatory Document issued by the DTI stated that electronic mail was not a call for the purposes of the Telecoms Data Protection Directive, because it was a value added service delivered via publicly available telecommunications services.

The EU Directive on distance selling (also adopted in 1997 and known as the “Distance Selling Directive”) presented a second opportunity for the UK Government to regulate UCE. This Directive had to be implemented by 4 June 2000 and at the end of 1999, the DTI published a set of draft regulations which suggested two possible systems of regulating UCE:

 The OPT-OUT System – Direct marketers would not be able to send UCE to individuals registered with an e-mail opt-out register that would be set up by OFTEL, the telecoms regulator.

 The OPT-IN System – Direct marketers would not be able to send UCE to individuals unless they had obtained the recipients’ consent to these types of e-mails beforehand.

However, the final regulations implementing the Distance Selling Directive (which were laid before Parliament on 31 August 2000) fail to address Article 10 of this Directive, which requires EU Member States to ensure that UCE are only sent where there is no clear objection from the consumer.

The argument given by the DTI to defend its approach is that...

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