The EU Privacy and Electronic Communications Regulations, set to become law in the UK on 11 December, aims to reduce e-mail and SMS spam.
The direct marketing industry has voiced its support for the regulations' main thrust of requiring prior consent from customers before e-mails or text messages are sent.
But the final version of the regulations, published by the Department of Trade and Industry (DTI) last month, includes an unexpected restriction on the kind of products and services that can be promoted via e-mail and SMS messaging.
Once an e-mail/SMS address has been obtained, it can only be used to market "similar goods" to what the recipient was buying or negotiating to buy when they first provided their e-mail/SMS address.
The DTI was expected to broaden this out to goods that a company had merely promoted, as opposed to actually sold or negotiated to sell.
Legal experts say there is now a question mark over what constitutes "similar goods". Daniel Pavin, a solicitor at Taylor Wessing, told the Data 2003 conference last month that clarification of the phrase was needed.
There was a bright spot for B2B e-marketers in the final version. Unsolicited e-mail/SMS can still be sent on an opt-out basis to corporate subscribers.
However this conflicts with the CAP Code of Advertising, the self-regulatory code that all UK marketers must comply with. The CAP code forbids unsolicted e-communications to individuals at a corporate address.
Stephen Groom, partner at Osborne Clarke and a leading e-marketing law expert, called for changes to be made to the CAP Code, to align it with the forthcoming law.
"On the one hand you can do something that's quite legal and on the other you're breaking the CAP Code," he said.
- See feature, page 43
THE E-REGULATIONS: KEY POINTS
1. E-marketers must obtain prior consent from customers before e-mails or text messages are sent.
2. Definition of the so-called 'soft opt-in': Future e-mails/SMS messages to a consumer must be "similar" to the products or services that the recipient was buying or negotiating to buy when they first provided their contact details.
3. Use of legacy databases of e-mail and SMS contact details: the final version of the regulations says use of these will not be permitted. (An earlier draft had hinted at a get-out clause for legacy lists.) The DTI has ruled out a transitional exemption for legacy databases.
4. Unsolicited e-mail/SMS can still be sent on an opt-out basis to corporate subscribers.
Source: www.marketinglaw.co.
.jpg)
.jpg)