| |
The United Kingdom's Anti-Spam Regulations
--------------------------------
The information on this page is presented to you by John Glube of
Head's Up - A Copywriter's Journal
--------------------------------
THE COMMISSIONER'S GUIDANCE
The Information Commissioner's Guidance To The Privacy And Electronic Communications (EC Directive) Regulations 2003
By way of a quick background, the European Union adopted a directive cited as Directive 2002/58/EC on July 12, 2002 with an implementation date of October 31, 2003.
Under this Directive, among other things, the European Union set out its rules for e-marketing and also how web sites can collect data from visitors.
This Directive was transposed into UK law by the Privacy And Electronic Communications (EC Directive) Regulations 2003 or The United Kingdom's Anti-Spam Regulations.
Directive 2002/58/EC compliments Directive 95/46/EC. Directive 95/46/EC sets out the parameters on how you can collect and process personal information. This Directive was transposed into United Kingdom law by The Data Protection Act, 1999.
The Data Protection Act created a position called the Information Commissioner to administer the legislation.
The Commissioner issued his initial set of guidelines on the implementation of The United Kingdom's Anti-Spam Regulations on November 17, 2003. To quote from the Commissioner's web site:
"The Commissioner's initial guidance on the 2003 Regulations is now available. We regret that we were unable to consult on draft guidance because of the timescale. On the one hand we could not be certain of the final form of the Regulations until they were laid in late September. On the other hand we considered it important to provide guidance at least a few weeks before the Regulations come into force on 11 December. We therefore decided to produce initial guidance on understanding that this will be subject to review and likely revision in the light of comments and questions received. In particular we intend to add further practical examples as these occur to us or are drawn to our attention.
The guidance currently appears in two parts. The first part is concerned with marketing by electronic means. The second part is concerned with the remaining issues under the Regulations including the security and confidentiality of services, the processing of traffic and location data, CLI, directories and the enforcement mechanism.
If you have any comments on the content of this guidance, you can email us at: mail@ico.gsi.gov.uk. Please put "Communications Guidance Feedback" in the title field."
To upload a copy of the Electronic Communications Guidance - Part 1 (Ver. 1 Nov 03) in PDF Part 1 Of The Guide
And to receive a copy of the Electronic Communications Guidance - Part 2 (Ver. 1 Nov 03) in PDF Part 2 Of The Guide
(If you get the dreaded no site available, it just means there is a lot of traffic at the Commissioner's web site. Give it a break for a couple of minutes and then try again.)
--------------------------------
It is acknowledged the proceeding information on this page as taken from the Information Commissioner's web site is presented with the permission of and subject to Crown copyright. To view the original material as posted on the Information Commissioners Web Site Go Here.
--------------------------------
Initial Comments On The Information Commissioner's Guidance
Four quick comments on the Commissioner's Guidance in the area of e-mail marketing.
* The Commissioner states "marketers do not need to know individuals’ names in order to conduct a direct marketing exercise." However, the Commissioner goes on to point out the consent of the recipient is required. This means you will need to have the names of your subscribers to prove you have the intended recipient's consent.
* On the question of consent, the Commissioner states:
"In our view, therefore, there must be some form of communication whereby the individual knowingly indicates consent. This may involve clicking an icon, sending an email or subscribing to a service. The crucial consideration is that the individual must fully understand that by the action in question they will be signifying consent."
This point is further highlighted by the statement:
"In summary, the precise mechanisms by which valid informed consent is obtained may vary. The crucial consideration is that individuals must fully appreciate that they are consenting and must fully appreciate what they are consenting to."
(See pages 4 to 5 of the Electronic Communications Guidance, Version 1, Part 1, November 2003)
* There seems to be an apparent conflict between the Commissioner's Guidance and the earlier response given by the United Kingdom's Department of Trade and Information on the ability to use legacy lists.
The Department suggested you would have to reconfirm legacy lists.
The Commissioner, while acknowledging the higher standards imposed under the new regulations suggests he is prepared to extend some latitude to the use of existing list provided you collected the data in accordance with existing Data collection principles applicable under UK law prior to December 11, including you have prior consent to sending your direct marketing message and you have recently sent a direct marketing message to your mailing list.
* In the area of co-registration services and the use of mailing lists were consent is granted by third parties, the Commissioner's Guidance is interesting. At the beginning of his guidance, the Commissioner points out the difference between solicited and unsolicited messages, stating:
"Put simply, a 'solicited message' is one that you have actively invited. An 'unsolicited marketing message that you consent to receiving' is one that you have not specifically invited but you have positively indicated that you do not mind receiving it. This is not the same as failing to object to receiving a message when you are given the opportunity to object.
By analogy, it is the difference between asking someone to buy you a drink and that person asking you if they may buy you a drink to which you answer "Yes". The outcome may be the same in both scenarios - you receive a drink. However, in the first scenario you have invited the drink whereas, in the second scenario, you haven’t objected to someone buying you a drink but you didn’t invite them to make the offer. To extend the analogy, when a person does not say 'No' to a drink that is offered, it is not the same as saying 'Yes'. They may simply be ignoring the offer which they are entitled to do if it doesn’t interest them."
(see page 4 of the Electronic Communications Guidance, Version 1, Part 1, November 2003)
The Commissioner acknowledges direct consent may be required. However, noting the difference between "solicited messages" and "unsolicited messages sent with prior consent," he suggests if a person consents on the basis of inviting receipt of marketing messages, this avoids the problem. This view is not consistent with the two leading decisions of the United Kingdom's Advertising Standards Authority, based on the CAP Code which does not draw the distinction between "solicited" and "unsolicited messages sent with prior consent." (For those who are not familiar with these rulings, please go to footnote #1 of the article The Death Of Email Marketing.
* The Commissioner has no objection to e-publishers sending out third party solo advertising to people on your mailing list. However, you need to make it clear the solo advertisement is being sent by the e-publisher and not by the advertiser.
For e-marketers, the question becomes what to do? Comply with the regulations and apply best practices in carrying out your e-marketing efforts. This means:
* Unless you have the requisite consent as mandated by Directive 2002/58/EC, you are better off reconfirming your list. Why? Unless you are prepared to remove all California e-mail addresses from your mailing list (which makes little sense) it will let you build a list on a stronger basis and minimize possible complaints. Put up the appropriate site disclaimer, properly phrased depending on what you publish to your mailing list.
* When using a co-registration service, look closely at the methods used in collecting names and email addresses. You will want to insist upon the provider using an "opt-in" approach as outlined by the Commissioner. Will 3rd party consent suffice? Does the form indicate the person opting in is inviting the receipt of marketing messages? To rely on this distinction, you want to be sure the form makes it clear exactly what the person is opting in to receive and the person is inviting or soliciting the receipt of marketing messages.
Personally, I would prefer compliance with the CAP Code and the leading adjudications made by the United Kingdom's Advertising Standards Authority. Why? The consumer may not appreciate the distinction and this is the better practice. It will also avoid any problems with State and pending Federal laws in the United States of America and will ensure the mailing lists you buy are more amendable to receiving direct marketing e-mail from you.
However, you must remember people on these lists as "cold prospects." This means you need to take the appropriate steps to warm up your new subscribers before sending any direct marketing material to the people on your list.
These comments are for information purposes only. You will want to consult with competent counsel before making any decisions concerning your business.
--------------------------------
To read "The Death Of E-Mail Marketing?" reviewing the impact Anti-Spam legislation will have on online marketers who use permission based or opt-in e-mail marketing Use This
--------------------------------
The information on this page is presented to you by John Glube of
Head's Up - A Copywriter's Journal
--------------------------------
Not yet subscribed to the Journal? To get the details, plus your Free Courses "Discover How Anyone Can Get More Buyers" as your reward and learn how you can place your 400 character business to business ad Click Here.
--------------------------------
| |