The Privacy and Electronic Communications Regulations will implement an EU Directive of last year. The deadline for comments to the Government's consultation on implementing the Directive expired on Thursday.
In summary the draft Regulations:
Require businesses to gain prior consent before sending unsolicited advertising e-mail. This consent must be explicitly given on an 'opt-in' basis by all, except where there is an existing customer relationship;
Require that the use of cookies or other tracking devices is clearly indicated and that people are given the opportunity to reject them;
Allow mobile operators and their partners to provide customers with value added services, such as traffic and weather updates, where consent has been given; and
Ensure stronger rights for individuals to decide if they wish to be listed in subscriber directories. Clear information about the directory must also be given, e.g. whether further contact details can be obtained from just a telephone number or a name and address.
In general, the draft law has been met by a favourable response from the marketing industry.
The main concern raised seems to be with regard to the proposal to permit corporate subscribers to register with the Telephone Preference Service (TPS). This is a list with which individuals can register if they do not want to be contacted by telephone by direct marketing companies.
The Advertising Association (AA), a trade federation for the advertising and promotional marketing industry, said that a provision allowing business to register "would disproportionately affect small and medium-sized enterprises that use telephone marketing to drive sales and marketing opportunities to other businesses. This would also be seriously anti-competitive."
It went on, "The extension of TPS registration to corporate subscribers would impose an extra burden on direct marketing companies who would have to bear the cost of additional list cleaning against such corporate TPS."
With regard to spam, the AA, the DMA and the AEB (a coalition of industry organisations), were generally approving of the draft wording. However, the AA asked for a liberal stance on the provision which limit a company promoting by e-mail only 'similar products or services' to existing customers in the absence of prior consent:
"The AA believes that companies should not have undue restrictions placed upon them in terms of being able to provide information on new products and services that may be currently available, or made available at a future stage. The AA views the issue of parent company information and information from subsidiaries to be insufficiently clear in the Directive. It is of course not in a company's best interest to provide information of irrelevance to people, nor is it in their interest to annoy potential customers. However, denying companies that have legitimately been provided with information under the rules of the Directive from using this information to provide information, may hinder the industry from being able to provide details of innovative new products and services of potential interest and benefit to prospective customers. Companies should be provided with the opportunity to share information that may increase competitiveness in the market place and allow easier access to a more widely available product choice.
There was also support for the wording that deals with cookies. These are small text files used on most commercial web sites. The files are sent from a web server to a web site user's computer and are stored on the hard drive, so that when the user visits the web site again, the site will remember him.
The Regulations take a self-regulatory approach to the control of cookies. This means that so long as web sites provide the relevant information to users, there is a degree of flexibility about how this is actually done. The DMA, for example, provides in its soon-to-be-published revised Code of Conduct, that:
"a clear and prominent statement must be displayed, immediately prior to or at the time of collection, explaining what personal information is to be collected, how it is to be collected and by whom. This should include specific reference to the collection of information through cookies and other tracking technology".
This provision has the additional support of the AEB and the AA.
Another broad-brush approach is that given to the proposed value added services for mobile phone users. Again, this was welcomed by the marketing associations. Provided that the informed user has given consent, the AA is supportive of "the non-specification of the services that may be provided", claiming that, "Provision of any exhaustive list in the current climate may prove damaging in the long run."
With regard to subscriber directories, the marketing associations are happy that consumers will not be given the choice to opt-in to such directories, but must choose whether or not to opt-out.
The consultation document is available here.
The Privacy and Electronic Communications Directive is available here.
The AA response is available here.