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Paisner & Co comments to the Department of Trade and Industry
The Telecommunications (Data Protection and Privacy) Regulations 1998
A. INTRODUCTION
Paisner & Co is a medium sized commercial law firm based in the City of London. The firm comprises over 100 lawyers, with a specialist Group advising on computer, media and intellectual property law. The CMIP Group has also developed expertise in connection with the legal issues affecting the development of online technology and its business applications. The formidable growth experienced by the Internet in the last few years reveals the business opportunities of this means of communication. In particular, the correct use of electronic mail is a core issue in the achievement of the Internet's potential.
Paisner & Co's CMIP Group is keen on participating in the consultation process concerning the Telecommunications (Data Protection and Privacy) Regulations 1998 (the "Telecoms Privacy Regulations") and accordingly, wishes to contribute the following comments focusing on the proposed exclusion of electronic mail from Part V ("Use of Telecommunications Services for Direct Marketing Purposes") of the draft Telecoms Privacy Regulations.
B. LEGISLATIVE BACKGROUND
In line with a practice which has already been established in some countries1, the European Union Commission took the view in 1994, that new advanced digital technologies were giving rise to specific requirements concerning the protection of personal data and privacy2. This view led the European Parliament and Council to adopt, at the end of last year, a Directive concerning exclusively the processing of personal data and the protection of privacy in the telecommunications sector (the "Telecoms Data Protection Directive")3. The Telecoms Data Protection Directive complements the October 1995 Directive on the protection of personal data and on the free movement of such data4.
According to one of the recitals of the Telecoms Data Protection Directive, safeguards must be provided against the intrusion into the privacy of subscribers of telecommunications services by means of unsolicited calls and faxes. This principle is further expanded by Article 12, which establishes that the use of automated calling systems or fax machines for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent. In addition, Article 12 states that Member States shall take appropriate measures to ensure that all other types of unsolicited calls for direct marketing, are not allowed either without the consent of the recipients or in respect of subscribers who do not wish to receive such calls.
C. UNSOLICITED E-MAIL AND PROPOSED REGULATIONS
Member States must implement the Telecoms Data Protection Directive by bringing into force laws, regulations and administrative provisions (as the case may be) by not later than 24 October 1998. As part of this process, the Department of Trade and Industry published a Consultation Paper5 last April, dealing with some issues on which Member States have different options as to the way they implement the Telecoms Data Protection Directive. The DTI Consultation Paper made a distinction between the two categories of unsolicited calls, by explicitly referring to unsolicited marketing via e-mail as an example of a non-automatic calling system.
However, somewhat surprisingly, the recently proposed draft Telecoms Privacy Regulations exclude e-mail from the application of provisions governing unsolicited calls and faxes for direct marketing purposes. Consequently, as currently drafted, the relevant provisions implementing the Telecoms Data Protection Directive would fail to tackle the abusive use of unsolicited e-mail.
Unsolicited e-mails (commonly referred to as "spam"6) are said to cost UK businesses more than £5bn a year7, while current technology allows "spammers" to send millions of messages at a relatively low cost. This practice poses a real threat to both businesses and consumers that rely on the Internet for day-to-day communications. This is so because, the growth of mass e-mailings are clogging the Internet bandwidth, while personal information flows around the Internet on a relatively unrestricted basis. As a respected Internet technology consultant puts it, "the interconnectedness of the Net makes safeguarding privacy an increasing challenge"8.
The draft Telecoms Privacy Regulations were expected to be a decisive contribution to the legal fight against spam in the UK. However, although the proposed Regulations ban the use of automated calling systems for direct marketing purposes (unless the recipient of the call has given prior consent), e-mail is exempted from this ban on the basis that it is not a "call". This is the standpoint of an Explanatory Document9 intended to offer an overview of the issues covered by the draft Regulations. The Explanatory Document unconvincingly states that electronic mail is not a call for the purposes of the Telecoms Data Protection Directive, because it is a value added service delivered via publicly available telecommunications services.
This fact alone would certainly include e-mail within the scope of Article 12 of the Telecoms Data Protection Directive. Indeed, both telephone solicitations and junk fax transmissions have been said to be analogous to spam10. Therefore, it would have been a logical step for the Telecoms Privacy Regulations to include provisions establishing an opt-out scheme, where spam would not have been permitted if an Internet user had indicated that he or she did not wish to receive it.
D. CONCLUSION
The current draft Telecoms Privacy Regulations have unfortunately missed a crucial opportunity to deal with a problem that is having a detrimental impact on the development of electronic commerce. However, in our view, the finally adopted Regulations will need to effectively address the issue of unsolicited e-mail. Therefore, we would like to offer our co-operation during the forthcoming legislative process, so that the final Regulations incorporate a flexible and enforceable procedure which provides proper safeguards against privacy intrusions for users of Internet communications.
If you wish to have a discussion with us in connection with the issues raised by this document, please contact Eduardo Ustaran directly on 0171-427 1237 or by e-mail at eustaran@paisner.co.uk.
Paisner & Co 30 September 1998
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1In Canada, for example, existing data protection legislation operates on a sector-by-sector basis covering areas such as banking, telecommunications and transportation. <back>
2OJ C 200, 22 July 1994, p. 4. <back>
3OJ L 24, 30 January 1998, p. 1. <back>
4OJ L 281, 23 November 1995, p. 31. <back>
5DTI, UK Implementation of Directive 97/66/EC on the Processing of Personal Data and the Protection of Privacy in the Telecommunications Sector, April 1998. <back>
6The use of the term "spam" to refer to unsolicited e-mail messages was adopted by early Internet users inspired by a Monty Python sketch. <back>
7The Independent, 26 May 1998. <back>
8Esther Dyson, Release 2.0: A Design for Living in the Digital Age, Broadway Books, 1997. <back>
9The Explanatory Document is available in pdf format on http://www.dti.gov.uk/cii/tdpd/condoc2.htm. <back>
10Jonathan Byrne, Squeezing Spam Off the Net: Federal Regulation of Unsolicited Commercial E-mail, 2 The West Virginia Journal of Law and Technology 4 (14 February 1998), available on http://www.wvjolt.wvu.edu/v2i1/byrne.htm. <back>
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