Dear Mrs Mustermann,

A window of opportunity has been opened by the Council in its recommendations concerning the proposal for a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector. The Council’s proposals would ban, throughout the EU, the practice of ‘spamming’ or sending bulk commercial messages electronically to people who have never requested them but nevertheless are expected to bear the costs of receiving them. The Council’s definition of “electronic mail” is sufficiently broad to include SMS and similar systems based on mobile phones.

The European Parliament had previously wished to promote the unimplementable concept of ‘national choice’ in relation to Unsolicited Commercial Email, whilst on the other hand supporting a complete ban on similar practices using the Short Message Service. Further extensions and developments in messaging systems using mobile telephony would not necessarily have been covered by the Parliament’s proposals because the language was too specific. Other amendments from Parliament relating to email were similarly too technology-specific. In any case, the Parliament’s position ignores the Commission’s assessment of the negative impact on the internal market of having divergent national regimes in the area of promotional use of electronic messages.

The Council's proposals:

• ban the use of “electronic mail” (email, SMS, etc) for advertising without the prior consent of the recipient
• allow companies to send promotional material to addresses or numbers given by their owners in the course of arranging a purchase, but only for their own similar products and only if they make it possible for the recipient to withdraw consent at any time
• provide for ‘opt-in’ or ‘opt-out’ for advertising by other means (non-automated voice telephony) according to national preference
• prohibit disguising or concealing the identity of the sender
• require a valid address for opting out of further communications
• direct that interests of legal persons (organisations) be “sufficiently protected”
• call for a review of impact and further developments after three years

It is significant that the European Commission, who must oversee the implementation of the directive, and the member states’ Communications Ministries represented in the Council, who must implement and enforce the resulting national legislation, both support an EU-wide ban on Unsolicited Commercial Email. EuroCAUCE urges all Members of the European Parliament to accept the Council’s recommendation.

For further information and clarification, please contact us.

1. The EU has a proud tradition of taking the lead in key policy issues

Did the European Parliament ask itself if the Copyright Directive would completely stop piracy? Of course not – there were legitimate interests to be protected, and the European Parliament took a pragmatic and effective approach. The Parliament also supported the 1995 Data Protection Directive, which is the leading example globally of comprehensive protection for consumer privacy. How many laws would ever be passed, if a guarantee of complete success were a criterion for their adoption?

2. Opt-in gives spammers in the EU nowhere to hide

The Article 29 Group of national data protection commissioners has repeatedly called for opt-in, due to the difficulties of enforcing data protection legislation under opt-out. Spam is already growing fast in Europe and opt-in will stop European organisations who misguidedly think that they can build their brand using unsolicited e-mail. All reliable evidence points to unsolicited e-mail campaigns damaging organisations rather than helping them - see for instance the eMarketer report at http://www.emarketer.com/estatnews/estats/email_marketing/20010921_imt.html

3. Opt-in means that customers know where they stand

Under opt-out, a consumer receives an unsolicited e-mail and cannot tell whether it is a real offer from a legitimate marketer, or a fraudulent offer from a spammer. The offer may appear so good that a very few consumers may even be tempted to respond (and lose their money). However, under opt-in the situation is much clearer: consumers can easily tell which are the legitimate companies, making it less likely that they will be defrauded by spammers.

4. Opt-in points companies in the right direction

All available research points to the fact that companies are better off using opt-in. However, the temptation under opt-out is to send very cheap bulk e-mails to consumers – nobody will know if you breach data protection rules because, if opt-out is the legal framework, it is almost impossible to police. Opt-in will help European business help themselves to produce effective and consumer friendly advertising.

5. Opt-in Shows others what EU consumers are prepared to accept

‘Sweeping our own doorstep’ won't make the whole ‘information super highway’ clean, but it sets the tone. Any organisation which fails to respect an EU citizen's privacy will show right from the beginning that it is not to be trusted. If a company is not trusted, few will want to do business with it. Few would be willing to contribute in money or effort to the cause of a non-commercial organisation whose means of establishing contacting is to misuse the email addresses of its potential supporters.

For further information and clarification, please contact us.

Is a ban on unsolicited e-mail fair to European companies?

All available research indicates that “permission-based” advertising is the medium of the future – while unsolicited e-mail is increasingly viewed as being utterly ineffective and even damaging for companies who use it. A ban on unsolicited e-mail will help European companies adapt to this reality much more quickly than companies in countries with less consumer-friendly legislation where spam is permitted.

Is a ban on unsolicited e-mail fair to charities?

The UK charity WaterAid (see www.givewater.org) made contact with 2,000,000 consumers without sending one single unsolicited message. They simply made a deal with a water company, which agreed to pay a certain amount of money for visits to their website. You, too, should go to www.givewater.org - another 4 million visitors means another 50,000 British Pounds for charity. Advertised through “word of mouth” alone, this good cause was richly rewarded for respecting consumers and not sending spam. In order to send unsolicited e-mail legally, a charity would have to respect national data protection laws, run the risk of breaking the law by sending messages to any of the five countries in the EU where it is currently illegal to send unsolicited messages and run the risk of damaging their reputation by being accused of ‘spamming’.

Is opt-in fair for (as one MEP said in a press release) “gays and subversives”?

Under the 1995 Data Protection Directive, details regarding sexual orientation cannot be held by a company without the consumers' consent. Therefore, even under opt-out, a gay person will only legally receive e-mail targetted at gay people if the person has indicated to the sender that (s)he is gay. Nobody has ever suggested that the 1995 Directive’s provisions to protect data regarding sexuality has had the opposite effect.

Article 8
The processing of special categories of data
1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life [except where] the data subject has given his explicit consent to the processing of those data

Regarding the idea that opt-in will make it obvious which consumers have signed up to mailing lists belonging to “subversive organizations”, even if this threat were real, the mailing lists of subversive organizations themselves would be the target of police surveillance and not the computers of every man, woman and child in Europe who might be signed up to a subversive organization – this opt-in/opt-out debate has no significance whatsoever in this issue.

For further information and clarification, please contact us.

How are small and medium sized businesses supposed to make “first contact” with potential consumers?

The Internet is a fantastic communications tool, where there are many more opportunities for contacting consumers than by invading their privacy and imposing costs of them by sending them junk mail - as proven by the fact that very few established Internet companies ever used junk e-mail. For example:

Viral Marketing - Some companies create products, which people send to their friends, who send to their friends, etc. For example, Hallmark Cards, provide a free e-cards service, Yahoo! provides mailing list program, Coca-Cola sponsors online games advertising their product, and so on.

Banner advertising in opt-in newsletters - One of very many such lists covering every conceivable topic, the Industry Committee secretariat runs a mailing list, provided free by Yahoo! in return for advertising in the e-mail. Such lists allow companies to send precisely targeted e-mails - which, unlike junk e-mail, consumers will not delete immediately, but will open and read, possibly several times.

Banner advertising on websites and sponsorship of sites - Imaginative advertising on relevant websites is less intrusive and more visible for consumers than junk e-mail.
 

Does it make sense to allow unsolicited e-mail while banning automatic calling systems, faxes and SMS?

SMS will be completely out-dated by the time the Directive will be implemented. Short Message System (SMS) is already being replaced by Extended Message System (EMS).

Also, technologies such as ENUM mean that all communications platforms will be able to communicate with all others, making technology specific legislation utterly unenforceable.
 

Surely it’s enough to allow consumers to delete their e-mail online without downloading it?

Not all consumers read their email in this way. Even for those who do, this still takes time and uses the same amount of ISP resources.  It also remains expensive for consumers to look up their mail online and delete it, even if they don’t have to download the massive amount of junk e-mail that the Parliament correctly expects consumers to receive.
 

For further information and clarification, please contact us.

1. NEVER OPT-OUT

If you opt-out, you are confirming that your e-mail address is active. Even if the spammer who sent you the original message doesn’t send you any more spam, he is very likely to resell your address to another spammer, increasing the amount of spam you receive, rather than decreasing it!

2. DON’T SIGN UP TO ANYTHING ONLINE

Never give your e-mail address online. Under opt-out, there is no way of telling how your e-mail address was obtained, so you have no idea who you can trust to give your e-mail address and no transparency when your personal data is being abused.

3. DON’T HAVE A WEBSITE OR A DOMAIN NAME

Spammers collect e-mail addresses both from website e-mail links and from the domain name registry. Even if you take the precaution of not putting your e-mail address on your website, the simple fact of having a domain name (www.yourname.com) will be enough to get spammed.

4. NEVER UPLOAD OR DOWNLOAD FROM THE INTERNET

To upload or download large files from the Internet, a protocol called FTP (file transfer protocol) is used. If your personal details are included in your FTP program, this can be used by spammers to collect your address.

5. NEVER USE CHAT ROOMS OR ON-LINE MESSAGE BOARDS

Chat rooms are a very common way of collecting e-mail addresses, as most programs require you to include your username and password in your settings – ready for “harvesting” by spammers. Online message boards usually include your e-mail address automatically with your messages – ideal for spammers to collect your address and send you junk mail.

For further information and clarification, please contact us.

Electronic communications (processing of personal data and protection of privacy) COM(2000)385-2000/0189(COD)