Opinion: A road paved with good intentions?

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Nick Martin, general manager of Mardev, is fed up of a diet of spam.

I am sick and tired of the spam I receive in my email inbox every morning. For example, I now know more than I ever wanted to about issues surrounding male virility (or the lack of it) and chemically-supported sex. I dare not try and 'unsubscribe' to the nefarious offers, inducements and obscenities that land in my inbox (although almost all
of these emails never include such basic courtesies), for fear of encouraging these shabby and unethical enterprises to blast me with even more garbage.

Surely, I hear you say, here is someone who will on this basis welcome a future legislative regime that requires opted in email data collection, so that only those people who have expressly and explicitly consented to receiving emails can do so.

And yet, I am set against this approach for a whole range of reasons. So, with the impending European legislation on email communication due to see local enactment within the European Union towards the end of 2003 (and later no doubt in some countries), now seems like a good time to review the issues once more.

Will the new legislation stop the spammers? No. Any EU legislation only applies within the EU, within those countries that have passed primary and secondary legislation to enact EU Directives into local law. The spammers operate from all over the world, and blast indiscriminately. As long as harvested emails exist, there will be people who are prepared to buy them.

Consent is a crucial cornerstone of modern marketing, customer communications and relationship management. In the EU, the importance of obtaining consent is allied to the equally important principal of clear notification - telling your customers or target audience what it is they can expect you to do with their details once they have provided them to you, and therefore the range of communications they can expect to receive by email.

These twin pillars of privacy law are important - they provide a proper framework within which the notion of permission gains an all-important context. After all, someone's permission to use their email address without really properly understanding the range of uses this may cover is without foundation. It may be legally, or technically permissible, but is it good practice? I would suggest not.

So what do we mean when we talk about consent? Currently, where an email address is given in context of proper notification and consent, the act of providing an email is implied consent, that is, in opting to give email address details, the individual is also giving their permission
for a business to use the email address for the purposes communicated.

A belt and braces approach may also include a specific clause for a purpose that the business wishes to highlight in particular, in association with a device (such as a tick box) to ensure the intentions for use are clear.

Where data is collected over the Internet, the submit button is often used as the device to confirm that the individual has signed up to receiving communications - a practise that started in the USA. I would argue that this works as long as notification is clear, and a right to object is provided at all times (and does not involve a game of 'hunt the needle in the haystack').

Double opt-in, where implied consent is followed up by a confirmatory email, is no substitute in my view for being clear in the first place, although it is undeniably a sensible step to introduce into web-based data collection. Mechanisms per se should not be allowed to smokescreen
poor or no notification.

Explicit consent, on the other hand, requires an individual to expressly request to be communicated by email, again in the context of a given set of stated purposes. The weakness of relying upon this approach, especially when collecting information 'off-line', is that people rarely fill in boxes they don't have to. Consequently, it is no indication of
their preferences.

Do we ask people in business whether they would like to be telemarketed? No. Do we specifically ask people for prior permission to mail them? No. So why do we think of email differently? Just because it's easier to do is no reason to distinguish it as a channel. If the message is worth
communicating to a relevant audience, then it's worth communicating.

What about those that might argue that even a handful of unhappy individuals is reason enough to insist on a very different approach to a different media? They miss the point - there are people who take issue with being mailed, and any data owner or direct marketer with any experience will recognise that t'was ever thus, irrespective of communications channel. The important thing is to deal with these individuals professionally, and ensure they are suppressed from further communications at the earliest opportunity. In the case of email, that should mean instantaneously.

Strip away the waffle about inconvenience and intrusiveness, and fundamentally the issues are the same whatever communication medium one chooses to employ. Inconvenience and intrusion is being spammed with garbage; not being targeted by reputable companies with something useful
to say, using data properly and responsibly gathered.

What next? The new round of EU-inspired legislation on email communications promises us the legal construct of a 'soft opt-in'. At the time of writing we wait to hear what this means.

Is it data collection under principles of implied consent, where an individual's intention to grant permission is clearly implied within the context, and where the act of providing the email address against a set of notified purposes is the act of opting in, subject to being able to
change their minds in the light of what they subsequently receive by email?

If the intention was otherwise, why would the legislators have gone to the trouble of employing the qualifier 'soft'? We can only beg the question at present. It is down to each member state to define 'opt in' for us, which will be somewhere on a sliding scale between implicit and explicit, and will be different in each member state.

Maybe it’s time to differentiate? Although there is no distinction between people in business (at their place of work) and consumers at home within this proposed legislation, perhaps it is time to reconsider the relevance of taking this route.

Elizabeth France, whilst she was the UK's Information Commissioner, made the distinction quite clearly between business to business and business to consumer marketing. Her focus was very much aimed at protecting us as consumers.

For example, she recognised the acceptability of personal data being collected at switchboard level within a business, and notification and consent being subsequently wrapped up within the material mailed or the telephone script used at point of first use.

Email marketing is a godsend for businesses; to communicate with their customers, to acquire new ones, to improve the targeting of their information and offers, and to build market presence.

Making the most measurable and effective communications channel that business has EVER had prohibitively difficult to use, will undermine the potential for business growth, especially within the small and medium sized business sectors.

It won't affect large companies to anything like the same extent, and many multinational and conglomerate organisations may well see this an opportunity to create an invisible but very effective barrier to entry for their smaller competitors. This is most likely to be most extreme in countries where the state has many shareholdings, and is influenced by self-interest.

I believe that on this subject I share a point of view with Merlin Stone among others. Now is the time to support business, not stifle initiative.

Nick Martin is general manager of Mardev. http://www.mardev.com.


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By admin
25th Nov 2002 06:34

Rubish! If you email me without my full concent, then you are spamming me, irrespective of whether it is [***] or in your opinion "worthwile information". The issue is not "Opt-in" but illegal distribution or selling of email addresses. If I opt in then I will be happy to receive email, but if I receive email that I clearly did not opt in then there should be severe legal penalties for the perp!

Thanks (0)
By admin
25th Nov 2002 06:34

Rubish! If you email me without my full concent, then you are spamming me, irrespective of whether it is [***] or in your opinion "worthwile information". The issue is not "Opt-in" but illegal distribution or selling of email addresses. If I opt in then I will be happy to receive email, but if I receive email that I clearly did not opt in then there should be severe legal penalties for the perp!

Thanks (0)