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Freedom of Speech and the Growth of Electronic Commerce

1. Banning the use of an entire medium for a specific type of speech - unsolicited commercial email- is a drastic measure which may have unforeseen consequences for addressing other forms of speech, especially on the global medium of the Internet.

2. As the Parliament has recognised "there is a need to promote cross-border commercial communication services which have a fundamental role to play in the on-going development of electronic commerce".

3. Unsolicited commercial communications by electronic mail play an essential role in informed consumer choices and will become fundamental in the marketing mix of responsible marketers to contact prospective customers.

Competition between commercial mediums

4. E-commerce as a sales medium has to compete against traditional commercial media - the high street, out of town shopping, mail order, teleshopping, etc. All of these media use direct marketing - based on an opt-out system - as part of their promotional activities. Requiring the electronic medium to have to compete on the basis of opt-in will seriously undermine its potential to compete.

Industry wants to stop fraudulent unsolicited commercial communications

5. Fraudulent unsolicited commercial messages are strongly combated by responsible industry. Using commercial e-mails to make fraudulent offers is not something new for the off-line world. The European Advertising Standards Alliance (EASA), has set up an effective system for cross-border complaints and hot line advertisements, which has been praised by the European Parliament, to stop direct mail scams.

6. One of the main problems reported by EASA when dealing with fraud has been the impossibility to identify the sender. Internet Service Providers are also facing the same problem. The present identification requirements of the E-commerce Directive will considerably improve the tools to stop fraud on the Internet.

Cost issues are not properly addressed

7. The costs to both the consumer and Internet Service Providers have been flagged as fundamental arguments for supporting an opt-in scheme for unsolicited commercial e-mail. These reflect the failure of European telecommunications legislation to reduce the costs of leased lines and the connection costs to service providers.

8. Industry should support a policy that will put direct mail and e-mail on the same grounds. Charging a price for bandwith usage could be considered reasonable, as postal operators charge for distribution of mail. This would allow responsible marketers to continue promoting their products and services to potential customers and would eliminate the cost argument of unsolicited commercial e-mail. Research is already in place to assess how this shift in costs can be technically addressed .

Opt-in for e-mail is not a solution and may backfire on consumer concerns

9. It is essential that individual e-mail users have control over the information that enters into their in-boxes, an outright ban on unsolicited commercial e-mail, will take away from the consumer such control.

10. An opt-in solution will penalise responsible marketers but will be able to stop unscrupulous marketers from continuing to send unsolicited e-mail. Indeed, most spam originates from outside the EU and those operators will simply not respect the opt-in. As a result, consumers will receive a most spam mails from outside the EU with the correspondingly higher risk that these are seeking to defraud.

11. Consumer interests will be better served by ensuring that they know about comparable offers from EU suppliers, against whom they will enjoy much more effective redress (when necessary), as set down in other parts of the Directive. Furthermore, the United States is now discussing a bill, after wide consultation with interested parties, to regulate unsolicited commercial e-mail, based on an opt-out solution and clear identification requirements.

12. Lists of individuals that may wish to receive certain types of information (opt-in scheme) may invite greater misuse and abuse than opt-out lists.

Opt-out as the only proportionate solution backed by effective filtering technologies

13. Opt-out has been chosen as the standard for direct mail, telephone and electronic mail approaches in essential Community legislation for e-commerce such as the 1995 Data Protection and 1997 Distance Selling Directives.

14. Such opt-out solution forbid marketers from sending marketing messages to consumers who have registered their wish not to receive direct marketing promotions from that marketer. The present proposal of the European Parliament Legal Affairs Committee to create opt-out registers reinforces present data protection legislation and should therefore be supported.

15. Industry has taken effective steps to address consumers' requests not to receive unsolicited messages by establishing, in some countries since the 70s, general opt-out registers for direct mail. In countries where consumer concerns have been raised telephone opt-out registers have also been established. Different advertising campaigns and information on Internet web pages guarantee that the consumer is aware of these initiatives.

16. An opt-out register for electronic mail, where the consumer will be able to register on the Internet, will be soon in operation on a world-wide basis The Direct Marketing Industry is co-operating with Internet Service Providers in order to ensure wide knowledge of this initiative. Such a system will be available not only to members of the Direct Marketing Associations but to all marketers. Strict sanctions will be applied to members who do not respect the obligation to clean their mailing lists and other legal actions against non-members are foreseen.

17. The European Industry is also taking other self-regulatory initiatives to protect data protection concerns on the Internet. The Spanish Association of Electronic Commerce has adopted a Code of Conduct on Data Protection on the Internet in co-operation with consumer organisations which includes a seal guarantee . A similar initiative at European level is now being prepared.

18. At present there are very different filtering technologies being used by both Internet users and Internet Service Providers. Such technologies are not, however, efficiently working due to the use of forged header information and the lack of other methods of distinguishing unsolicited commercial mail from other mail. Again, the current provisions of the E-commerce Directive on identification will radically improve the effectiveness of filtering technologies.