Unsolicited Commercial E-mail

1. Unsolicited Commercial E-mail Meeting of Oftel Internet Forum 22 July 1999 EU Distance Selling Directive provisions on unsolicited e-mail

2. Distance Selling Directive • Gives basic legal protection to people who buy goods and services through telephone sales, mail order and e-commerce. • Has to be implemented by 4 June 2000.

3. Main provisions of the Distance Selling Directive are: • Requirement for information prior to the conclusion of the contract; • Confirmation of information in writing or another durable medium; • Cooling off period of seven working days during which the consumer can withdraw from the contract for any reason; cont.../

4. Main provisions of the Distance Selling Directive are: • Execution of contracts within 30 days unless otherwise agreed. • Restrictions on use of unsolicited communications (including by e-mail) for distance selling purposes.

5. Distance Selling Directive Article 10 Restrictions on the use of certain means of distance communication 1. Use by a supplier of the following means requires the prior consent of the consumer: • automated calling machine without human intervention (automatic calling machine), • facsimile machine (fax) cont...../

6. Distance Selling Directive Article 10 Restrictions on the use of certain means of distance communication 2. Member States shall ensure that means of distance communication, other than those referred to in paragraph 1, which allow individual communications may be used only where there is no clear objection from the consumer.

7. Distance Selling Directive Forms of communication included under Article 10.2: • Telephone • Mail • Electronic mail

8. UK Objectives in implementing e-mail provisions • Provide consumers with proper level of protection as required under the Directive • Minimise any additional burdens on business • Encourage development of e-commerce • Give business adequate warning of new provisions so they can prepare for implementation

9. Opt-in or Opt-out? • Government has an open-mind • Both approaches have their strengths and weaknesses • Need to assess these against the criteria for a successful consumer protection regime: Cont..../

10. Opt-in or Opt-out? • Requirements: - Easy for consumers to understand and act upon - High level of consumer awareness - Effective in achieving objective (ie consumers who don’t want junk e-mail don’t get it) - Properly enforced - Does not act as a disincentive to e-commerce - Avoids raising expectations that cannot be met

11. Opt-outArguments in favour • Directive wording clearly implies it • In line with possible minimum requirements of proposed EU e-commerce directive • Consistent with recent Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations • In theory ought to place less burdens on industry • More support for opt-out than opt-in following first DTI consultation paper

12. Opt-inArguments in favour • Bulk e-mail costs recipients and ISPs more than the sender, therefore better analogy may be fax rather phone calls • Becoming an increasing problem • Few legitimate direct marketers use unsolicited e-mail so opt-out unlikely to be self-financing • Could be less burdensome in practice than opt-out • Opt-out lists used by spam e-mailers and may be discredited

13. The way ahead • Second consultation paper with draft Regulations to be published shortly • Draft regulations will show both opt-out and opt-in • Welcome views of • business (both direct marketers and ISPs), • consumer bodies and • enforcement agencies