In message <[log in to unmask]>, Chris
Spray <[log in to unmask]> writes
>Roland, Isn't your exception too limited? My understanding is that email
>addresses of incorporated businesses, including those addresses with
>personal data (I'm not looking to rekindle the "is an email address
>personal data?" discussion!), are not subject to the prior consent
>requirement.
There are a number of issues here (apart from the much discussed DPA "is
an email address personal data" [1]).
(A) The Distance Selling Directive says :
"individual communications may be used only where there is no
clear objection from the consumer".
Which raises two issues:
(1) Someone at work, buying things for work isn't covered [2],
but how much spam falls into that category? Almost all that I
get, to whichever email address, is related to individual
consumption (see also B below).
(2) What is "no clear objection". Some have argued that the
clear objection is what an EPS would provide, however the UK
Government disagrees, and has agreed (as part of the
transposition of the Directive) that *all* email users have
expressed a clear collective objection to unsolicited email,
which can only be rescinded by the inclusion of the email
address on an opt-*in* list.
(B) Meanwhile, there is the issue of targeting of offers. I wrote the
following piece last year, and it was accepted by the APIG Spam
enquiry[3] as the basis of their recommendation #44:
"Some provisions in the Directives above only apply to natural
(rather than legal) persons. However, if an email that would
only be of interest to a natural person (for example, an
invitation to buy Viagra sent to the sales address of a shipping
company), is sent to the address of a legal person, then it
ought to be construed that a natural person is the intended
recipient, and the full protection of the Directives should be
provided."
(C) Not forgetting that: UBE is normally considered unacceptable
according to the Acceptable Use Policy of individual ISPs, which in
general make no distinction between emails sent to individual or
corporate email addresses (natural/legal persons). Therefore the sender
is in breach of the AUP, at best; and fraudulently obtaining service, at
worst. [Real enthusiasts could even argue it's a Computer Misuse issue,
as the sender is gaining unauthorised access to their ISP's outbound
emailer.]
(D) Finally, the direct marketers are their own worst enemies, because
even if they can find a loophole through all of the above, they
generally fail to abide by Article 7 of the Electronic Commerce
Directive 8 2000/31/EC, transposed as the Electronic Commerce (EC
Directive) Regulations 2002:
UBE must be "identifiable clearly and unambiguously as soon as
it is received".
(For example, by the use of an ADV: prefix on the title.)
(QED) If someone using an ISP that allows UBE, sends me a clearly marked
email to a role address at work regarding a product/service that would
be of use to my company, then it's OK [4]. Otherwise, not. But in any
event it's going to get deleted (because of point D, if nothing else)
along with all the offers of illegal mail order prescription drugs,
cheap dollar mortgages (that cost more than regular UK ones) and "chicks
of my dreams" (yeah, right); and the only thing left will the nasty
taste in the mouth.
[1] It seems to me that anyone arguing that my business email address of
[log in to unmask] is *not* personal data is mistaken; but
let's not go through all that again...
[2] "consumer" means any natural person who, in contracts covered by
this Directive <97/7/EC>, is acting for purposes which are outside his
trade, business or profession;
[3] Page 13: http://www.apig.org.uk/spam_report.pdf
[4] For some value of "OK". It might be legal, just; but along with many
others I've sworn never to do business with people who use that kind of
marketing.
--
Roland Perry
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