Final Amendments to "E.Privacy" Directive

A number of these were outlined in the Recommendation for Second Reading from the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs (LIBE), with further amendments tabled by the various political groups. Many of those in the Committee's report were rejected, whereas most of those proposed jointly by the European People's Party (Christian Democrats) and European Democrats (PPE-DE) together with the Socialists (PSE) in consultation with representatives of the Commission and the Council were adopted. The final text of those sections of particular interest to us reads something like:

Recital 40 (Council, LIBE Am7) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, Community-wide rules for businesses and users.
  Recital 41 (PPE-DE, Am29.1,.2,.3,.4) Within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of similar products or services, but only by the same company or corporation that has obtained the communication details in accordance with Directive 95/46/EC). When contact details are obtained, the customer should be informed about their further use for direct marketing in a clear and distinct manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.
  Recital 44 (Deletion: LIBE, Am9) Direct marketing activities carried out by political, charity or other organisations, for instance activities aimed at recruiting new members, fund raising or lobbying for votes, are included in the concept of direct marketing as established by Directive 95/46/EC. Messages by political organisations or others for purposes other than direct marketing, for example the expression of views, thoughts and ideas, are not covered by the provisions on unsolicited communications of this Directive.
  Recital 44a (new) (PPE-DE+PSE, Am45) Certain electronic mail systems allow subscribers to view the sender and subject line of an electronic mail, and also to delete the message without having to download the rest of the electronic mail's content or any attachments, thereby reducing costs which could arise from downloading unsolicited electronic mails or attachments. These modalities may continue to be useful in certain cases as an additional tool to the general obligations established in this Directive.
  Article 2 (Council) Definitions (h) "electronic mail" means any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient's terminal equipment until it is collected by the recipient.
  Unsolicited communications Article 13.1 (Council) The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.
  Article 13.2 (PPE-DE+PSE Am44.1,.2) Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own products or services of a similar category, provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use.
  Article 13.3 (PPE-DE Am28) Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  Article 13.4 (Council) In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited.

Final Text of Directive 2002/58/EC

Whereas: <...>

(40) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, Community-wide rules for businesses and users.

(41) Within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of similar products or services, but only by the same company that has obtained the electronic contact details in accordance with Directive 95/46/EC. When electronic contact details are obtained, the customer should be informed about their further use for direct marketing in a clear and distinct manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.

(42) Other forms of direct marketing that are more costly for the sender and impose no financial costs on subscribers and users,such as person-to-person voice telephony calls, may justify the maintenance of a system giving subscribers or users the possibility to indicate that they do not want to receive such calls. Nevertheless,in order not to decrease existing levels of privacy protection, Member States should be entitled to uphold national systems,only allowing such calls to subscribers and users who have given their prior consent.

(43) To facilitate effective enforcement of Community rules on unsolicited messages for direct marketing,it is necessary to prohibit the use of false identities or false return addresses or numbers while sending unsolicited messages for direct marketing purposes.

(44) Certain electronic mail systems allow subscribers to view the sender and subject line of an electronic mail,and also to delete the message, without having to download the rest of the electronic mail's content or any attachments, thereby reducing costs which could arise from downloading unsolicited electronic mails or attachments. These arrangements may continue to be useful in certain cases as an additional tool to the general obligations established in this Directive.

(45) This Directive is without prejudice to the arrangements which Member States make to protect the legitimate interests of legal persons with regard to unsolicited communications for direct marketing purposes. Where Member States establish an opt-out register for such communications to legal persons, mostly business users, the provisions of Article 7 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce,in the internal market (Directive on electronic commerce) are fully applicable.

Article 2 - Definitions

(h) "electronic mail" means any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient's terminal equipment until it is collected by the recipient.

Article 13 - Unsolicited communications

1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax)or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.

2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service,in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use.

3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation.

4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited.

5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.