July 2004
Direct marketing by email or SMS
The Data Protection Commissioners of the EU member states have published an 'Opinion' on the proper interpretation and application of the recent EU Directive on privacy and electronic communications. The Opinion focuses on Article 13 which deals with direct marketing by e-mail or SMS. The UK implemented the relevant directive late last year by introducing the Privacy and Electronic Communications (EC Directive) Regulations 2003. The Opinion is helpful in clarifying the new law and creating further harmony across the EU.
The wide definition of 'electronic mail' in the Directive encompasses any messages by electronic communications, where simultaneous participation of the sender and the recipient is not required. This therefore includes email newsletters as well as messages left on answering machines.
The Opinion offers further clarification on the question of consent to direct marketing. Prior consent (or 'opt-in') must be 'legitimate, explicit and specific'. Accordingly, consent cannot be obtained by way of 'general acceptance' of terms and conditions governing registration to a particular online service, for example. A separate box is required to confirm consent to direct marketing communications, which must relate solely to the issue of unsolicited direct marketing e-mails. Otherwise, the consent is merely 'implied' and not compatible with the Directive's requirements. Pre-ticked boxes are not acceptable in this context.
The Opinion also deals with so-called legacy lists. There is no transitional provision in the Directive for existing e-mail lists and accordingly the Opinion underlines that strictly, until a list has been adapted to the new opt-in requirements it cannot be used under the new regime.
Here the Opinion goes rather beyond the current position in the UK. The UK interpretation of the Directive is that the continuing use of legacy lists by those who have compiled them, so long as opt-out requests are honoured and the list was compiled in a manner compliant with the law that applied at the time of its compilation. The list must also have been used relatively recently, preferably within the past year.
The Opinion underlines that it should be possible to opt-out of receiving further direct marketing e-mail or SMS using the same communication services e.g. by sending an opt-out email or SMS.
Automatic collection of personal data on public internet places is unlawful under the general Data Protection Directive (95/46/EC). This is because it constitutes unfair processing of personal data. Automatic collection performed by software also constitutes unfair processing and as such is unlawful.
The Opinion also deals with so-called 'soft opt-in' route to legality for direct marketing e-mails. This is where the e-mail is unsolicited but the e-mail address was obtained in the context of sale or negotiations and an indication was given at that time that future unsolicited direct marketing e-mails may be sent. The Opinion states that any subsequent e-mails have to be sent by the same person that collected the e-mail address in the first place in relation to similar goods or services that were the subject matter of the initial contact with the recipient.
Briffa Comment:
The EU Data Protection Commissioners oversee and enforce compliance with data protection legislation in their respective countries. The Data Commissioners ensure that organisations that are processing data are doing so in line with the obligations that are placed upon them by the various pieces of national and European legislation. You can find more information about the UK data protection at www.informationcommissioner.gov.uk.
However, please note the recent Carphone Warehouse case ( where the ASA decided that consent had been obtained even though the recipients of direct marketing communications had not ticked a separate box signifying their explicit consent.
It is recommended that you contact Briffa to obtain legal advice relating to your direct marketing campaign in order to ensure that you are not in breach of any regulations or legislation relating to direct marketing.