LAWFUEL – The Law News Network – A unique probe into European email marketing laws has revealed that the UK is bottom of the league when it comes to policing opt-in/opt-out rules.
European law firm Osborne Clarke’s 17 country survey, conducted with help from legal experts throughout the Osborne Clarke Alliance and beyond, answers ever louder demands by digital marketers for clearer information on how Europe’s interactive marketing laws vary, what differing penalties lurk for the unwary and in which European states they are most likely to get caught.
With Brussels dictating that it is “country of destination” rather than country of origin for email and mobile phone marketing (meaning businesses have to comply with “opt-in/opt-out” laws where recipients live), this information is vital for those planning international digital marketing campaigns and looking to manage risk.
Amongst the key findings of the survey are
· the UK (just one legal case to date, a civil action in which £270 damages were paid), Malta (0) and Portugal (0) are the most spineless European states when it comes to penalties for getting it wrong and enforcement action to date
· the most active enforcement regimes are in Austria (over 500 cases to date), Greece (over 70), Italy (over 50) and Spain (over 50)
· the highest penalties for those who get caught have so far been in Denmark (£154,000) and France (£205,000)
· a majority of EU states forbid unsolicited commercial emails to company employees (“corporate emails”) without prior consent, with the UK in the minority in allowing these on an “opt out” basis
· the vast majority of EU states allowing corporate emails to be sent until the recipient opts out follow the UK example and restrict these to messages promoting business products.
Stephen Groom, a marketing law partner at Osborne Clarke, said:
“This survey confirms what many feared, which is that UK digital marketing law enforcement is in crisis, with responsible marketers wondering why they are bothering to be compliant when they see their competitors riding roughshod over the laws, gaining market advantage and suffering little or no penalty.
“The results also underline that despite the many years and untold aggregate expense involved in negotiating, signing off and introducing harmonising legislation, Europe is still way off the mark in terms of establishing a level playing field for those wanting to use cutting edge marketing techniques. Digital marketers must continue to check local laws wherever their messages are bound to ensure compliance.”
More details of the Osborne Clarke survey will be revealed
· at the DMA’s Annual Data Protection Conference on 8 March when Osborne Clarke’s Stephen Groom and Tim Reinhard host a session on pan European data protection law compliance for marketers
· soon on Osborne Clarke’s website www.marketinglaw.co.uk, Europe’s first and still the leading online resource for advertising and marketing law
