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Luxembourg
(LU)
Luxembourg
| Euro Parliament | Chambre des Députés | NIC |
2002-01-30: Muddled logic and wishful thinking are, alas, not confined to the European Parliament's Committe on Citizens' Freedoms and Rights, Justice and Home Affairs or sincere but woefully misguided individual Members. The Luxembourg delegation registered its dissent from the majority position in the Council with this demonstration of clue-deficiency:-
Statement by the Luxembourg delegation (Article 13, paragraph 1)
Luxembourg was unable to vote in favour of this proposal for a Directive, which would oblige it to amend – with reluctance – its recent legislation transposing in full the Directive on electronic commerce. Luxembourg has decided on the opt-out system for unsolicited commercial communications by electronic mail, inter alia because it enables both undertakings and consumers to take full advantage of the information society. Those groups will also benefit from the wider proffering of goods and services and from greater competition, which will make it easier to compare what is on offer. Imposing an opt-in would call into question practices recently validated by the Commission, the Council and the European Parliament in the Directive on electronic commerce.
In Luxembourg's opinion, Article 13(1) is:
- inappropriate, as it clearly goes beyond the objective laid down by the Directive. According to recital 8, "harmonisation should be limited to requirements necessary to guarantee ... the promotion and development of new electronic communications services ...". The proposal goes well beyond that. The opt-out, we believe, already constitutes a minimum level of harmonisation at Community level, with procedures and limits as laid down in the Directive on electronic commerce, while an opt-in is just a way of allowing Member States to go further if they wish. There is no evidence that the co-existence of these two systems would lead to problems with the internal market.
- disproportionate, as a blanket ban on using new tools to offer their goods and services and seek new customers penalises undertakings far too heavily by comparison with what the Directive sets out to do. The ban is particularly harmful and discriminatory for SMEs, which cannot afford traditional methods of advertising through the media because of the high costs involved, and is likely to harden already well-established market positions. Imposing the opt-in is tantamount to erecting obstacles to the entry of new operators in the market (a tendency which Article 13(2) merely reinforces), and – in the internal market – slowing down moves by SMEs to encompass the information society – a process we are only too keen to encourage.
- pointless, as by choosing the opt-in, the Council is seeking to protect itself against a type of "spam" which comes almost entirely from third countries. The proposal under discussion will not solve that problem; its only effect will be to penalise European undertakings for practices for which they are not responsible.
Finally, Luxembourg regrets that the European Parliament's opinion on this matter – one which represents a good balance between all the parties taking part in the discussions – has not been taken into consideration.
The majority of the Council thought otherwise, as did the Commission, the Article 29 Working Group, and ourselves. In our opinion the Council's proposed Article 13 is:
- appropriate - while there is no direct evidence (yet)
that disparate regimes will prove to be unworkable in practice, a few
moments' thought more than makes up for this deficiency. Not all
European users' mailboxes have 'national' Top Level Domains: many are
on .com, .org, or .net domains where it is not possible to tell by
inspection where a given recipient is located or whose rules are to
apply. 'Opt-out' does not offer the protection required, according
to the Commission's study and the Article 29 Working Party.
(See links to Policy Documents)
- proportionate - the European net user should not be required
or obliged to subsidise directly everybody's advertising.
Email is cheap because the recipient pays. The growth of
"permission-based" marketing is encouraged, and misappropriation
of others' resources is discouraged. A level playing field is created
for all throughout Europe, and not at the direct expense of European
consumers.
- useful and effective - the actual goal is to stop abuse before it starts. Organisations in and outside Europe will have been served notice as to what marketing practices are and are not acceptable. European Internet Service Providers will no longer, due to legal uncertainties, feel unconditionally obliged to carry traffic they and their subscribers find abusive. Legislative efforts outside Europe to deal with the frauds and abuses often perpetrated by Unsolicited Bulk / Broadcast Email will be encouraged by the European example.
"Turnabout is fair play." Parliament chose to ignore the
well-considered opinions of the Commission and the Article 29 Working
Group (not to mention the Commission's thoroughly-researched study). In
doing so, Parliament went on to produce an amendment which was far
too technology-specific and therefore likely to be overtaken by
developments long before it was implemented. All in all, it turned out
to be a pig's breakfast which ultimately got the consideration it so
richly merited.
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There is a relatively new law (21 March 1997) concerning telecommunications. Among other things, the Telecommunications Institute of Luxembourg (which is established under the same legislation) is responsible for ensuring that the provisions of legislation governing data protection are observed when compiling directories of subscribers to telecommunications services. There is no legislation to date which concerns email.
Thanks to the Luxembourg Consumers' Union for the above information.
(Beebit 1998-06-08)
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