Don't let junk e-mail catch you in the net

Share this article

UNSOLICITED commercial e-mail, or "spam", is a true internet phenomenon. Almost universally reviled as an offensive, resource-sapping invasion of privacy, these unloved missives nonetheless make up an estimated half of all e-mail traffic.

The situation has become so dire that Brussels has interceded with a new directive imposing tough new regulations, covering all forms of electronic direct marketing, on EU member states including the UK.

While these measures have been broadly welcomed, some fear they could hamper the efforts of legitimate businesses to communicate with potential clients.

The new EU directive came into force in July this year, but will not be implemented in UK national law until the Europe-wide deadline of October 31. While the final UK implementing regulations are yet to be published, the Government’s draft document and the directive itself provide valuable insights into the incoming regime.

There has been a long debate within the EU over whether spam should be regulated by taking an "opt-in" approach, where individuals must actively request information, or "opt-out", where marketing material may be sent until the recipient asks for it to cease.

This question proved to be particularly divisive with several member states, including the UK, favouring the more business-friendly "opt-out" approach. It was eventually decided all member states must implement an "opt-in" regime, effectively prohibiting spam within the EU.

A broad range of electronic media is covered including fax, e-mail and probably even mobile text messaging, although the latter is not explicitly mentioned in the directive.

There are several caveats to the "opt-in" rule, designed to protect established companies using e-mail to communicate with their clients. Under the new laws, companies will not need explicit consent to send electronic marketing material to existing customers to whom they have previously sold goods and services.

From a practical point of view, companies currently using e-mail marketing should start thinking about creative solutions to attract potential customers to sign on to the mailing list. It is also essential to review current marketing policies, procedures and practices.

For companies running websites, the new laws may also place restrictions on the use of "cookies" - tiny pieces of code downloaded to the client computer which allow the identification and tracking of individual customers visiting the company’s site.

Businesses which collect information in this way will have to provide website visitors with clear information about how cookies are being used, give the visitor the opportunity to refuse cookies and provide the information needed to remove existing cookies from their computers.

Any infringements of the UK implementation are likely to be taken up by the Office of the Information Commissioner, the body responsible for enforcing data protection legislation. Possible action against any offender can include notices requiring businesses to carry out or cease a particular action, or even a demand for compensation where damage has been suffered.

The Direct Marketing Association remains highly critical of the new directive, accusing it of being a blunt instrument unable to distinguish between "true spam" and the use of targeted marketing lists. It also points out that while sending spam will be illegal within the EU, the new laws will do nothing to curb the vast majority of spammers who operate outwith the EU.

It remains to be seen whether on not the directive’s Europe-wide implementation on October 31 will have a noticeable impact on the deluge of spam currently flowing into UK inboxes. In either case, there are certain to be immediate and far-reaching implications for any business using electronic media for marketing purposes.

Gillian Cameron is a partner specialising in IP and technology at law firm Maclay Murray & Spens