The law is tightening up on the spammers

Unsolicited junk e-mails are an ever-increasing problem and, according to recent reports, account for a staggering 40 per cent of e-mail traffic. Such mailings erode consumer confidence in e-commerce at a time when governments worldwide are working to increase e-business.

A global fight against the spread of junk e-mail is now taking place. In the UK, Labour MP Paul Flynn has proposed legislation for a ban on the sending of junk e-mail and MPs are organising a “Spam Summit” to tackle the issue.

This is in addition to new UK regulations, due to implement the EC Directive on Privacy and Electronic Communications by October 31, 2003. The Information Commissioner has already requested increased powers to enforce these regulations.

Businesses that want to market their goods and services legitimately by e-mail now have to take specific steps to ensure their messages are not viewed as “spam”.

The UK already has a number of legislative measures in place to combat the issue of junk e-mail. Under the Electronic Commerce (EC Directive) Regulations 2002, any commercial communication by e-mail (whether solicited or unsolicited) has to identify specific types of information clearly.

Any unsolicited, commercial communications must be clearly and unambiguously identifiable as such when they are received by the recipient. (In California, legislation requires that such unsolicited communications be labelled “ADV” at the beginning of the subject line to show that they are an advertisement).

Where businesses in the UK intend to address marketing communications to personal e-mail addresses, then the sending of such communications must comply with the Data Protection Act 1998 (DPA). Businesses need to ensure they can fairly and lawfully use such personal data for direct marketing in accordance with the act.

The act gives individuals the right to prevent their data being used for DM purposes and marketers must provide such individuals with the means to “opt out” of receiving such mailings at any time.

In addition, implementation of the new Privacy Regulations (as currently drafted) in October 2003 will mean that unsolicited e-mail marketing is prohibited unless the recipient has previously indicated agreement to such activity, the sender’s identity is not concealed and a valid address to send an objection is given.

E-mails can be sent when the sender has obtained contact details during the sale of its products or services to the recipient, provided that the communication only relates to the sender’s products and services which the recipient has been made aware of, and that the opportunity to object to such marketing was given at the time of data collection.

An individual who suffers damage will be entitled to bring a claim for compensation against an organisation that contravenes the regulations.

Nicola Marsden is an associate in the technology, media and intellectual property group at law firm Addleshaw Goddard

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