WRITTEN QUESTION E-2344/02

by Jillian Evans (Verts/ALE) to the Commission

(29 July 2002)

Subject: Unsolicited mail

Unsolicited mail and telephone calls are not only considered a nuisance to many people throughout Europe but can also be intimidating, misleading and confusing, especially for the most vulnerable members of society who may be led to believe that they should part with their money, banking details, credit card numbers or other personal details.

Could the Commission say what can be done on a Europe-wide basis to protect consumers from receiving misleading unsolicited mail, often from companies based outside the consumer's Member State or outside the EU?

Answer given by Mr Byrne on behalf of the Commission

(30 September 2002)

The Honourable Member has raised the issue of unsolicited mail and telephone calls. The Commission's reply assumes that unsolicited mail is not limited to unsolicited correspondence via the post, and that the question is intended also to cover electronic mail.

Community law has already addressed the problem of telephone calls and unsolicited mail directed to consumers, including so-called e-mail spam.

Directive 97/66/EC of the Parliament and of the Council of 15 October 1997, concerning the processing of personal data and the protection of privacy in the telecommunications sector(1), is of particular relevance for unsolicited calls for direct marketing purposes. Directive 2002/58/EC of the Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)(2), which applies from 31 October 2003, will replace and strengthen the rules concerning the processing of personal data and the protection of privacy in the electronic communications sector. Under this new Directive, which was adopted under the co-decision procedure, e-mails or SMS sent for direct marketing purposes to natural persons will only be allowed where users have given their prior consent (so-called opt-in system), except in the context of an existing relationship and then only for similar products (see Article 13 of this Directive) as it is already the case for unsolicited faxes and telephone calls via automatic calling machines. As regards direct marketing calls with human intervention, Member States will still be able to decide between an opt-in and an opt-out regime. Disguising the identity of the sender or providing an invalid return address will be prohibited. This regime is applicable for electronic communications to all recipients in the Union, irrespective of the origin of the communication.

Directive 95/46/EC of the Parliament and of the Council of 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data(3) regulates the processing of personal data that are used for sending unsolicited mail. In particular, Article 14(b) of this Directive provides for the right of the data subject to object (on request and free of charge) to the processing of personal data relating to him which the controller anticipates being processed for the purposes of direct marketing, or to be informed before personal data are disclosed for the first time to third parties or used on their behalf for the purposes of direct marketing. Then the data subject must be expressly offered the right to object (free of charge) to such disclosures or uses. In addition, Member States must take the necessary measures to ensure that data subjects are aware of the existence of this right.

Directive 2000/31/EC of the Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular e-commerce, in the internal market (the e-commerce Directive)(4), as well as Directive 97/7/EC of the Parliament and of the Council of 20 May 1997, on the protection of consumers in respect of distance contracts (the Distant Selling Directive)(5) are without prejudice to this data protection regime. For other means of distance communication, such as printed mail, Article 10(2) of the Distant Selling Directive obliges Member States to ensure that they may be used in distance sales only where there is no clear objection from the consumer. The importance of this so-called opt-out model is underlined by recital 17. Article 12(2) of Directive 97/7/EC assures the application of its rules vis-à-vis third countries.

Article 7 of the e-commerce Directive requires in particular that unsolicited commercial communication must be clearly identifiable and unambiguously as such. In Member States permitting unsolicited commercial e-mails, service providers should regularly consult and respect the opt-out registers in which natural persons not wishing to receive such commercial communication can register themselves (see also recitals 30 and 31). These registers, sometimes illustratively labelled Robinson lists, enable the consumer to prevent spamming in e-commerce. Those Member States which have established an opt-out system will have to adapt their national legislation to the mentioned new Directive 2002/58/EC on privacy for the sending of unsolicited commercial communications to natural persons. Nonetheless, the new opt-in regime does not automatically apply to legal persons (Article 13.5 of Directive 2002/58/EC). However, Member States do need to ensure that the legitimate interests of legal persons with regard to unsolicited communications are sufficiently protected.

Similarly, Article 10.2 of the Directive on the distance marketing of consumer financial services, adopted on 26 June 2002(6), follows the opt in/opt out approach for unsolicited mail or telephone calls. Member States have the choice between banning unsolicited communications unless prior consent has been sought, or else allowing them on condition that the consumer has not expressed his manifest objection. The Distance Marketing Directive is also without prejudice to the new rules covered under Directive 2002/58/EC.

(1) OJ L 24, 30.1.1998.

(2) OJ L 201, 31.7.2002.

(3) OJ L 281, 23.11.1995.

(4) OJ L 178, 17.7.2000.

(5) OJ L 144, 4.6.1997.

(6) Not published yet.