WRITTEN QUESTION E-3392/02

by Astrid Thors (ELDR) to the Commission

(28 November 2002)

Subject: Unsolicited advertising in Windows, protection of personal data in telecommunications networks

In recent months, Windows programme users have been annoyed by advertising windows which pop up on screen. These windows do not come as e-mail or over the web but come in through the user system's back door. The process has been described by the Finnish newspaper IT-viikko in its edition of 14 November 2002. It reports that the advertising is carried out with the aid of a programme developed by a company called Direct Advertiser.com. The programme uses features in the Windows Messenger programme, the intended purpose of which was to enable users to send messages to the webmaster. The Messenger features are found in Windows 2000, NT and XP programmes.

Does the Commission consider that the recently adopted directive on protection of personal data in telecommunications networks offers consumers sufficient protection against such windows?

Answer given by Mr Liikanen on behalf of the Commission

(27 January 2003)

Commercial messages sent via the programme of Direct Advertiser.com, as referred to by the Honourable Member, do not fall within the definition of electronic mail as included in 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)(1). This definition only covers messages that can be stored in terminal equipment until they are collected by the addressee. Messages that depend on the addressee being on-line and that disappear when this is not the case, are not covered by the definition of electronic mail. As a consequence, the new Directive does not impose an opt-in for such messages (as under paragraph 1 of Article 13), but instead allows Member States to choose between an opt-in and an opt-out (paragraph 3 by Article 13). In accordance with the Directive, the national opt-in or opt-out rules will have to be in place by 1 November 2003 at the latest.

At its website, Direct Advertiser.com explains how users of Windows software can block messages from entering their terminal equipment by switching off the Windows Messenger programme. This information would also have to be provided as part of the messages that may be sent via the programme in order to offer recipients an opt-out facility as imposed by the new Directive, without prejudice to more stringent national opt-in requirements.

Moreover, it would appear that the Windows Messenger programme is in any case not intended for use by third parties to send unsolicited messages and that the Direct Advertiser.com software inappropriately uses it as a backdoor into the terminal equipment of potential customers.

In its ongoing dialogue with industry on personal data and privacy issues, the Commission will continue to stress that software should be designed to be privacy friendly and that defaults should be set in such a way that users have adequate control over third party access to their terminal equipment and to data stored on that equipment.

(1) OJ L 201, 31.7.2002.