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New
rules on privacy and electronic communications
13
October 2003
Businesses large and small will need to be aware of the new
rules on Privacy and Electronic Communications, which come into
force in December 2003. The
Regulations, issued in September, implement the European
Community’s Privacy and Electronic Communications Directive.
Among other changes, they are set to revise the ways in
which businesses can communicate with their customers by e-mail,
as well as laying out new parameters for the use of cookies on
company websites.
The Regulations are intended to tackle the problem of ‘Spam’ or Unsolicited Commercial
E-mail (UCE). The problem currently accounts for up to 50% of all
global e-mail, according to industry estimates.
Stephen Timms, Minister for Energy, e-Commerce and Postal
Services is quoted as saying that ‘While e-mail marketing can be
a powerful business tool, legitimate marketers are currently being
undermined by spammers who send e-mails with neither addressees’
consent nor efforts at effective targeting, wastefully clogging up
the inboxes of both businesses and homes’.
The new Regulations will introduce an opt-in consent
procedure for commercial e-mails, whereby businesses will only be
able to target people who have given their active consent (or
opted in) to receiving communications.
This is a change from the current regime, which only
requires that customers be given the opportunity to opt out of
such communications.
There will be an exception to this opt-in rule where e-mails
are sent in the context of an existing customer relationship.
Businesses may continue marketing to their own customers on
an opt-out basis (that is, until the addressee decides he/she does
not wish to receive further messages) as long as they only include
their own similar products and services in the communications.
In practice this will mean some changes for businesses
currently e-mail marketing. Initial
contact with customers will no longer be made by e-mail, and
existing databases of e-mail contacts will need to be checked
thoroughly to ensure that details have been legitimately
collected.
New rules will also apply to telephone marketing
after Spring 2004, when the right to register on the Telephone
Preference Service (or TPS-the ‘don’t call me’ list against
which marketeers have to screen their calls) will be extended to
corporate subscribers.
In practice, this will mean
that from spring next year, all companies will have the right to
opt out of receiving unsolicited business-to-business marketing
phone calls, which many SMEs in particular consider to be a prime
time-waster in the office. At
present, only individual subscribers have the right to register on
the TPS and they will also retain this right after next April.
Finally, businesses using websites to advertise and sell
their products and services will also be affected by the new rules
on the use of cookies. Cookies are an often misunderstood
technology. At their simplest they act as ‘markers’ sent to
the terminal of a user by a service provider.
They have a very wide variety of uses, ranging from
recording the number of visitors to a website to storing users’
details to speed up information society services like internet
banking.
From December 2003, businesses will have to inform their
customers that they use cookies, and provide an opt-out facility
for those who do not wish to accept them.
In practice this will mean clearly providing the user with
a ‘privacy’ or ‘cookies’ statement as well as the means to
switch off the cookies (through the service provider or by
pointing the user in the direction of the computer’s browser
settings).
The Interactive Advertising Bureau (IAB) has set up a
specialist team to develop a practical approach to the rules on
cookies, and helpful advice can be found at their website: www.allaboutcookies.org.
Further information on the new Regulations along with a copy
of the public consultation and the government’s response to
consultation can be found at the DTI’s
website
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