international war on spam, The

Information Management Journal, Sep/Oct 2003 by Swartz, Nikki

Consumers Union said Americans should have the right to block all advertising e-mail, including legitimate business e-mail, but U.S. legislators feel differently. Rep. Bob Goodlatte (R-Va.), a co-sponsor of H.R. 2214, has called the inclusion of an "opt-in" clause - whereby consumers would not receive spam unless they sign up to receive it - along with the inclusion of a private right of action a "nightmare for legitimate business." Rep. Robert Scott (D-Va.) recently indicated his desire to distinguish between legitimate and illegitimate e-mail business communications, saying that legitimate businesses have "First Amendment rights that must not be infringed."

The EU Example

The EU has a different perspective. One in eight e-mails sent in Britain is spam, compared with one in 200 at the beginning of 2002. And it's the same story across Europe. As a result, EU lawmakers have passed regulations that seek to ban spam in any form and stipulate that consumers must opt-in, or sign up, before receiving e-mail advertisements.

In 2002, the EU adopted a directive addressing unfair commercial practices that could dramatically alter the practice of sending unsolicited e-mail marketing in EU nations while granting controversial rights to member states to monitor Web surfers' activities. The regulation may result in a ban on spam in Europe. Article 13 of the directive specifies that e-mail marketing is only allowed with prior consent, meaning that unsolicited e-mail is illegal unless there is a preexisting business relationship between sender and receiver or the receiver has agreed to receive it.

Member states also can ban unsolicited commercial e-mails to businesses. Member states must apply and effectively integrate this rule into their national legislation by October 31, 2003 - a process that often can take years. These rules would replace the patchwork of national rules and court rulings on commercial practices across Europe. Because the directive ensures EU-wide standards of protection, businesses will have to comply with the EU requirements when marketing to EU consumers. The directive prevents other member states from imposing additional requirements. Member states will have a duty to ensure the rules on unfair commercial practices are enforced and that businesses in their jurisdiction that break them are punished.

The directive establishes two general conditions to apply in determining whether a commercial practice is unfair: (1) the practice is contrary to the requirements of professional diligence, and (2) the practice materially distorts consumers' behavior. The directive will ban unfair advertising, marketing, and other commercial practices used by businesses. Practices that are misleading or aggressive, such as spam, also will be banned. In short, businesses will be able to advertise and sell to all consumers in the EU based on one set of EU-wide rules. Consumers will have access to a greater range of offers and the same rights whether they buy from a local store or from another EU country online.