The Situation - Legislation in EU

Article 10 of the Directive of 20 May 1997 Concerning Distance Contracts (97/7/EC) was unfortunately drafted to put unsolicited email on the same "opt-out" basis as "junk" telephones made by a human operator. Means of contact where tireless automata would initiate communication with human beings or their apparatus of limited endurance were to be subject to more stringent "opt-in" criteria. The European Parliament, supported by the Commission, adopted an amendment to the Directive which would (logically) place email in the same category as unsolicited advertisements sent by fax or "robot" phone calls. The Ministers at the Council preferred to ignore the recommendations of Commission and Parliament and adopted the original draft.

Legislation conforming to the guidelines set forth in the Directive should be implemented in all the member states by the 4 June 2000. The Commission is then to prepare a report on this implementation together with recommendations for amendments within a year thereafter.

There is a "Minimal clause" (Article 14), which reads:- "Member States may introduce or maintain, in the area covered by this Directive, more stringent provisions compatible with the Treaty, to ensure a higher level of consumer protection."

Meanwhile, the Data Protection and Telecommunications Directive was expected to be implemented in all or in part by October 1998 (legislation in some member states was somewhat delayed). This Directive does not specifically apply to email but there are some provisions which are similar to those outlined in the Distance Contracts Directive.

A Proposal for a new EU Directive on certain legal aspects of electronic commerce in the internal market contains a labeling requirement for UCE. According to the Commission's commentary (November 1998) on Article 7,

"This Article deals with "spamming" practices, i.e. the sending of unsolicited e-mail to consumers or discussion groups. The need to protect the consumer demands solutions over and above those which already exist in Article 10(2) of Directive 97/7/EC 23 and Article 12(2) of European Parliament and Council Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector.

"This Article requires unsolicited communications to have a specific message on the envelope so that the recipient can instantly identify it as a commercial communication without having to open it."

And the actual, full text of Article 7, in its first draft:-

"Member States shall lay down in their legislation that unsolicited commercial communication by electronic mail must be clearly and unequivocally identifiable as such as soon as it is received by the recipient."

[...but only after costs of transmittal, storage, and download have been incurred by the recipient!]

After further consideration and amendments by Parliament, the Commission has suggested amending Recital 11 to include

So that the above can be realised, Article 7 is to include:

" 2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by e-mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves."

These Directives, actual and proposed, are meant to address consumer protection issues, however inadequately. None of them offer any hope of relief to businesses.

The Tasks at Hand

Legislative

First, to agitate in each member country for more stringent legislation to be passed concerning unsolicited bulk/commercial email and advertisement-by-telephone. Should this effort not prove to be successful, and the "opt-out" provisions be adopted, evidence of consumer dissatisfaction and annoyance must be gathered to present to the Commission so that its members can argue more convincingly for a changes in the Directives.

Professional lobbyists would be an asset, but we should remember that private citizens also have the right to lobby their Members of Parliament. Consumer associations should be able to assist: after all, we are all consumers as well.

Petition: If you haven't done so already, vote against UCE! Sign the Petition!

Educational

• Internet users need to be made aware of their rights and responsibilities. The ordinary Web surfer should be able to learn that there is no need to put up with the abuse.
• The business person dazzled by the prospect of low-cost advertising needs to be made aware why the apparent cost is low (the recipient pays) and why the reaction of the recipients/prospective customers will be negative.
• Internet providers public and private must be made aware of the problems and solutions: open servers and the means to close them, a deterioration in overall 'net performance owing to vast amounts of unwanted traffic.