WRITTEN QUESTION E-2429/02

by Erik Meijer (GUE/NGL) to the Commission

(26 August 2002)

Subject: Authorisation of unsolicited e-mail advertising (spamming) contrary to provision for opt-in system in new directive

1. Is the Commission aware that, on 18 July 2002, giving judgment in an appeal case between internet provider XS4ALL and the Ab Fab Interactive Media Group, Amsterdam Court of Appeal ruled that sending large quantities of unsolicited commercial advertising material by e-mail (spamming) was lawful?

2. How can this judgment be reconciled with the common position with a view to the adoption of the Directive of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, which was considered at second and last reading by the European Parliament on 29 and 30 May 2002 and which, in common with the Council's common position, provides for the opt-in system, which means that prior consent must be obtained from recipients before unsolicited commercial communications can be sent to them by e-mail, fax or automated calling system?

3. Does the adoption of this directive mean that a judgment along the lines indicated in paragraph 1 will no longer accord with the legislation in force once Member States have complied with their obligations under the directive within the two-year time limit?

4. If so, would it be possible to inform courts about the directive in advance and encourage them to apply the opt-in system in their judgments even before the requirements of the directive acquire force of law?

5. If not, what scope remains for the continued application of an opt-out system, such that it would remain possible to send unsolicited advertising material until the recipient objected by means of a prescribed procedure? What additional measures are required in order to put an end to it?

Answer given by Mr Liikanen on behalf of the Commission

(11 October 2002)

1. The Commission is aware of the 18 July 2002 judgement by the Amsterdam Court of Appeal regarding unsolicited commercial bulk e-mail.

2. The judgement provides further proof of the necessity of the new 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(1). It demonstrates that without this Directive there is no solid legal basis in many Member States that would allow internet service providers to help their customers in taking action against unsolicited commercial e-mail even where it causes substantial nuisance. One of the reasons behind the Commission proposal for a harmonised Community wide opt-in for unsolicited commercial e-mail, was to remedy this problem.

3. As of 31 October 2003 there must be a clear legal basis in all Member States prohibiting unsolicited e-mail for direct marketing purposes in respect of subscribers who are natural persons unless the prior consent of the recipient has been received.

4. Whether and to what extent courts can and will take account of imminent changes in national law depends on the national legal system.

5. Member States are free to implement an opt-in system for unsolicited commercial e-mail in advance of the new legal obligation under Directive 2002/58/EC and many of them have already done so. However, Member States may also wait until the ultimate date of transposition of the new Directive and maintain an opt-out system until then. Moreover, Member States are not obliged to extend the coverage of the opt-in approach to subscribers who are legal persons. For this category they can maintain or establish opt-out systems (Article 13.5 of Directive 2002/58/CE).

(1) OJ L 201, 31.7.2002.