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Stephen Groom, a partner at law firm Osborne Clarke, told delegates at a DMA seminar on the EU Privacy and Electronic Communications Directive last month that most B2B e-mails will not require prior opt-in, unlike e-mails to individual subscribers.

From 31 October, when the EU directive becomes law in the UK, unsolicited marketing to individuals via e-mail and SMS will be forbidden. The directive permits opt-out e-marketing to "existing customers", provided certain conditions are met.

But the directive does not apply the same strictures to B2B e-mails and SMS - except to partnerships, where e-mails and SMS messages must be opt-in.

Groom said: "As with all legislation the devil is in the detail, but there are clear opportunities for marketers to act now to organise their approach and collecting and using e-mail addresses that can take best advantage of the new rules."

The directive's apparent loophole is repeated in the newly revised CAP (Committee of Advertising Practice) code, which requires prior consent for B2C e-mails and SMS only. The CAP code is binding on all marketers operating in the UK.

A spokeswoman for the Advertising Standards Authority, which administers the CAP code, said: "CAP's advice is that B2B e-marketing is not covered by the explicit consent on e-mail and SMS rule." She added that the issue may become clearer if a complaint is brought before the ASA Council.

At the same DMA seminar an expert panel fielded questions about the prospects of a B2B Telephone Preference Service (TPS) becoming a reality, as part of the EU Privacy and Electronic Communications Directive.

B2B marketers had been outraged when the DTI announced plans to include a B2B TPS in the directive (Direct Response, May 2003), something the EU did not require it to do.

The DTI said a B2B TPS would answer complaints made by small businesses about telemarketing calls. However the DTI has acknowledged that data collection, which B2B marketers feared would be adversely affected by a B2B TPS, did not fit the definition of telemarketing.

The consultation period for the proposals ended on 19 June. The DTI must present the final version of the regulations before Parliament in August.

- See Legal Eagle, page 14.