Overview
Businesses operating websites and/or sending electronic communications to
customers have less than six months to comply with a new EU directive, or
face falling foul of the law. |
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From October 2003, opting-in
will be compulsory for marketing emails, and the use of website cookies will
be more stringently regulated. |
Critically, an EU-wide 'opt-in'
approach is to be adopted for SPAM, meaning that businesses will only be
permitted to send marketing emails and SMS messages to individuals who have
previously consented to the use of their details in this way.
Existing customers may be targeted, provided certain conditions are met,
although there is still some uncertainty about the precise scope of mailing
existing database contacts.
The new directive represents a change of emphasis rather than a change in the
substance of data protection obligations, but could have serious consequences
for any business not getting up to speed on the new laws. Businesses need to
address the changes now, both to ensure that their channels to market are
compliant, and to ensure that previously valuable customer databases are still
useable for future marketing campaigns.
As well as new email marketing laws affecting all who send emails for marketing
purposes, website operators also need to tighten up on how they collect and use
customer data. Web operators must provide users with "clear and comprehensive
information" about devices such as cookies used to collect their data, including
the purpose of any processing.
The opt-in approach in more detail:
The opt-in approach is slightly softened by a provision that allows companies to
target customers who have bought products or services from them in the past,
subject to the following provisos:
1. The customer's details must have been collected in the context of a 'sale'.
On a strict interpretation, this could rule out the use of contact details or
potential customers who have merely registered an interest in a service or
product.
2. The customer must have been told about the possible use of his or her data
for future marketing at the time it was collected, ie; at the time of the
initial purchase, and have been given the chance to object.
3. The opportunity to opt-out must be given with each subsequent marketing
message.
4. The customer's details may only be used by the same entity to whom they were
originally given. This has implications for transfers of customer lists between
group companies and trading partners (although these restrictions already apply
under the UK's existing data protection laws).
5. The marketing must be for a 'similar product' in relation to that which the
customer's details were originally gathered, but it is unclear just how similar
the new product advertised needs to be to avoid breach of the legislation.
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