Email privacy laws versus online marketing

The way email marketing is regulated still varies widely across Europe, and so do penalties for breaching the laws

There is a serious lack of harmonisation between electronic marketing laws across Europe, a new study from law firm Osborne Clarke has revealed. The situation could make it difficult for firms to manage their email promotion campaigns.

The UK is one of the poorest countries for protecting consumer privacy in this area, the study indicates. Although the government introduced the European Privacy and Electronic Communications Directive into the UK statute books in 2003, which rules that companies should allow customers to opt-in to receive e-marketing information in many cases, the authorities have yet to bring a single case to court against a firm abusing the law. Only one case has been recorded, but this was a civil case brought by an individual and resulting in a £270 settlement.

Furthermore, the UK’s maximum penalty for offences is set at £5,000 - one of the lowest penalties across Europe, according to Osborne Clarke. This compares to a £385,000 maximum fine in Sweden for abuse of e-privacy rules; up to £2,600 per email in France; and an unlimited amount in Denmark.

Other countries also appear to be exerting more effort to crack down on offences. For example Germany and Austria have both seen 500 cases for abuse of the privacy laws. And while the French authorities has brought far fewer cases to court, the five cases heard have resulted in fines of more than £200,000.

Stephen Groom, a partner at Osborne Clarke, attributed the UK’s poor showing to a failure at government level to take the issue seriously. “So the Information Commissioner’s Office just doesn’t have the resources or power to enforce the rules,” he argued.

As well as widely-differing attitudes to penalties and enforcement, Groom cited approaches to business-to-business e-marketing as a big discrepancy area across Europe. “There’s almost a 50-50 split between those European member states that require corporate users to opt-in for commercial emails, while the other half – including the UK - favour an opt-out approach,” he added. “It’s a pretty fundamental thing that firms need to consider if they’re sending out e-marketing campaigns to different countries in Europe.”

In related news, systems that let users track the paths of their sent messages have come under the spotlight of a European Union working party, which is arguing that such services contravene consumer privacy rules.

While email systems such as Microsoft Outlook offer users the ability to track receipt of a message, they also allow the recipient to decline sending an acknowledgement when they read the email. In contrast, the DidTheyReadIt service from Rampell Software does not offer recipients an option to refuse the tracking, and also provides senders with details of when and where the email was opened; how long it was open for; and if it was forwarded, according to the working party.

As a result, the EU working group found that such services are contradictory to data protection principles, which require transparency when collecting email and other electronic personal data.