European parliament issues draft law on privacy in electronic communications

Spam is unsolicited commercial e-mail. Spam drains telecommunications resources and is predominantly funded by someone other than the sender. It is estimated that unsolicited commercial communications cost UK business about GBP 5 billion a year.

The European Parliament has for some time been debating whether an "opt in" (a formal request to receive information) or "opt out" (a persons failure to do anything being deemed to be acceptance of the communications) should be used by businesses when sending out unsolicited commercial e-mails. Use of an opt out has the effect that the recipient has to first suffer the harm before being able to control it.

There are two EU Directives which regulate data protection and privacy in the telecommunications sector (97/66/EC and 95/46/EC). Of the EU states only Austria, Denmark, Finland, Italy and Germany decided to require that an opt in be used before commercial e-mails are sent.

Due to the developments in Internet commerce and the inevitable rise in the amount of unsolicited e-mails, the European Parliament has decided, as part of its review of telecommunications law generally, to issue a draft law on privacy in electronic communications.

On 12 December 2001, the European Telecommunications ministers voted to ban unsolicited commercial e-mails and put in place mechanisms for individuals to take steps towards protecting their rights with regard to privacy and Internet usage. The concept of "permission based" marketing prevailed with the inclusion of an "opt in" rather than "opt out" approach. The explicit consent of the recipient is therefore required prior to their e-mail address being included in any distribution list.

This ban would exempt companies which already operate electronic mailing lists from having to approach each individual on their database for permission to send e-mails. However, any person added to the list after the implementation of the ban could only be added if they have given their explicit consent.

Without the cost restraints inherent in a paper marketing campaign, e-mail marketing or spamming is open to abuse. This draft law will hopefully go some way to curbing this. For further information, please contact Lynn Fleming at [email protected] or on +44 020 7367 3216.