Did you know that The Privacy and Electronic Communications (EC Directive) Regulations 2003 came into force on 11 December 2003? This introduced the concept that it is illegal to send unsolicited direct marketing e-mail and SMS (short message service) communications to individual subscribers, unless the recipient is an existing customer of the sender or has previously subscribed to receiving messages from the sender. The Directive is aimed at ‘anyone who communicates commercially to markets by phone, fax, SMS or e-mail.’

The definition of individual subscribers under the Regulations includes consumers, sole traders and partnerships. It is important to remember that many professional service firms (accountants, lawyers, architects, estate agents etc.) are partnerships and therefore the Regulation applies to B2B as well as B2C direct marketing.

To put it simply, marketers will no longer be able to send unsolicited marketing e-mails without the prior consent of the subscriber – which must be a proactive response. New customers must agree to receive marketing by e-mail and if companies wish to share email or SMS contact data with third parties, they must also obtain the customers prior consent. The sender of unsolicited marketing e-mails must ensure that their identity is not hidden, as well as providing an email address or SMS message to which the recipient can confirm an unsubscribed message. Providing a postal address is also recommended.

The purchasing of third party lists of email address is still allowed however, as long as the purchaser of the list ensures that customers have given their prior consent before their details were passed to third parties.

If companies use website cookies they must inform consumers and also tell them how the information collected via the cookie will be used. This can be done via a statement within the website privacy policy, clearly indicated from the data collection form.

Unwanted commercial e-mails (also called ‘spam’) now account for more than 40% of global e-mail traffic. However, a large proportion of the spam received in the UK comes from outside the EC, making it outside the jurisdiction of EC regulation.

The Directive distinguishes between ‘natural’ and ‘legal’ persons, giving greater protection to legal persons. Marketers marketing to partnerships and sole traders will be severely restricted in marketing to these non-corporate customers unless they obtain their consent.

At present there are five main areas to be aware of for Unsolicited Commercial Email (UCE).

1: Distance Selling Directive:

Implementing Regulations in the UK only cover business to consumers, and do not impose any statutory schemes; instead they rely on existing voluntary schemes such as the DMA's Email Preference Service.

2: E-Commerce Directive:

This was implemented on the 21st of August 2002, with the Stop Now Orders coming into force in October 2002. The Regulations contain provisions on commercial e-commerce communications and include a requirement that all UCE (unsolicited commercial email) should be easily identifiable as soon as it is received

3: Directive on Privacy and Electronic Communication (DPEC):

The DEPC (formally known as the Communications Data Protection Directive) was implemented on 31 October 2003. It states that an opt-in approach must be used when marketing by email to natural persons (private individuals and sole traders anywhere in the UK).

4: Data Protection Act (DPA):

All contact details that include personal data whether corporate or individual are covered by the Data Protection Act (DPA) legislation. It states that individual subscribers (name@company.com or name@isp.com) must be able to opt-out from all UCE. The sender is responsible for complying with this legislation.

5. Internet Service Providers:

The majority of Internet Service Providers (ISP's) are involved with self-policing the Internet Community. This includes individual company policies regarding UCE's and "spamming".