EC Debates Opt-In Vs. Opt-Out

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The European Commission is considering revisions of a privacy-in-electronic-communications directive that could mandate opt-in for all e-mail marketers even before all member states have adopted the original directive into national law.

EC directives are legal guidelines with the force of law that member states must adapt into national law within a set period of time, though few nations ever meet the deadlines. Erkki Liikanen, the EC commissioner in charge of its information society, convened a one-day workshop Jan. 10 at the European parliament in Brussels to get the views of industry and consumer groups on the planned revisions. One hundred thirty people from 12 countries attended.

Although the whole directive was up for consideration, "much of the discussion centered on opt-in or opt-out for e-mail marketing," said Jodie Sangster, who handles legal affairs for the UK DMA.

The members of the Commission and the deputies to the parliament, she said, showed "a lot of support for adoption of an opt-in regime because it would provide consistency across Europe."

But she also said "there was an awful lot of support for direct marketing and obtaining the kind of opt-out mechanism we have in the UK, support that came from across industry representatives."

The U.S. representative at the meeting, Commerce Department official Gregory Rhode, was "very supportive of maintaining opt-out," she said. "He obviously has seen the effect in the U.S. of trying to introduce stop Spam laws ... The only effect new laws will have is to hurt those playing by the rules."

She said the Italians were the strongest opt-in advocates, as it has been through the privacy laws and directives the EU has worked on in recent years.

Sangster said the EC must better clarify "the difference between spamming and the DM approach to e-mail."

The UK DMA made that distinction forcefully in a communication to Marco Cappato, the EC official drafting the revisions. Spam is "bulk, untargeted e-mail," it said, while marketers use targeted lists to develop specific relationships with customers.

Moreover, Sangster said, "community data protection legislation already exists to prohibit spam e-mails so the introduction of further legislation for an opt-in scheme isn't going to stop unscrupulous marketers from continuing to send spam, but will penalize responsible marketers.

"Broadly speaking, e-mails sent for direct marketing purposes are the exact opposite of spam. They are targeted to specific and carefully selected individuals or companies where previous contact has been made."

In the letter to Cappato, the UK DMA stated that the opt-out vs. opt-in debate has already been held twice within the EC and that opt-out was adopted for both.

Nevertheless, the letter said, "the commission continues to reintroduce this proposal despite the parliament's views expressed at the debate on the e-commerce directive less than nine months ago."

Sangster would not guess when the revised document would be ready -- the EC is notorious for moving slowly -- but said input could be decisive for the document's final shape.
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