The EU Privacy and Electronic Communications Directive applies to the processing of personal data in connection with the provision of public electronic communication networks and service and thereby requires the Member States to create obligations for anyone involved in the forms of processing addressed by the Directive.
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Article 13(1) of the Privacy and Electronic Communications Directive requires EU Member States to prohibit the sending of unsolicited commercial communications by fax or e-mail or other electronic messaging systems such as SMS and MMS unless the prior consent of the addressee has been obtained (opt-in system).
The only exception to this rule is in cases where contact details for sending e-mail or SMS messages (but not faxes) have been obtained in the context of a sale. Within such an existing customer relationship the company who obtained the data may use them for the marketing of similar products or services as those it has already sold to the customer. Nevertheless, even then the company has to make clear from the first time of collecting the data, that they may be used for direct marketing and should offer the right to object. Moreover, each subsequent marketing message should include an easy way for the customer to stop further messages (opt-out).
The opt-in system is mandatory for any e-mail, SMS or fax addressed to natural persons for direct marketing. It is optional with regard to legal persons. For the latter category Member States may choose between an opt-in or an opt-out system.
For all categories of addressees, legal and natural persons, Article 13(4) of the Directive prohibits direct marketing messages by e-mail or SMS which conceal or disguise the identity of the sender and which do not include a valid address to which recipients can send a request to cease such messages.
For voice telephony marketing calls, other than by automated machines, Member States may also choose between an opt-in or an opt-out approach.
SPAM: Frequently Asked Questions
The Organisation for Economic Co-operation and Development (OECD), through its ad hoc Spam Task Force, has developed an Anti-Spam Toolkit to help policy makers, regulators and industry players orient their policies relating to spam solutions and restore trust in the Internet and e-mail. The Commission, which is vice-chairing the Task Force, has participated actively in the development of the Toolkit that echoes EU efforts in the area. The toolkit can be consulted here.
The Article 29 Data Protection Working Party has adopted on 21 February 2006 an Opinion on privacy issues related to the provision of email screening services (Opinion 2/2006, WP 118). The document aims to provide guidance on the question of confidentiality of email communications and, more specifically, on the filtering of on-line communications against viruses, spam, and illegal content. The document can be accessed here. (The Article 29 Data Protection Working Party is an independent and advisory body which brings together ‘data protection authorities’ in the EU. More background information on the Working Party is available here.)
The aim of this document is to aid the development and review of anti-spam legislation strategies and arrangements in OECD member countries and non-member economies. It provides a checklist of policy questions and decision points that policy makers may consider in their work. The Commission has a vice-chair position in the Task Force. The document is accessible from here.
