New York (April 27, 2004): With spam accounting for about two-thirds of all email traffic, the number of jurisdictions enacting anti-spam laws is proliferating almost as fast as spam itself. Yet according to White & Case’s Survey of Global Privacy Law, discrepancies in the anti-spam provisions being enacted around the world may harm cross-border marketing by legitimate businesses.
“It remains to be seen if these rising walls of anti-spam law will stem the flood of unwanted email in your inbox, but it’s clear that compliance with these laws will be a growing concern for legitimate businesses involved in cross-border e-marketing,” says Robert L. Raskopf, co-head of White & Case’s Global E-Commerce, Media and Technology practice group.
Raskopf says one of the biggest concern most companies face is coping with the differing laws of multiple jurisdictions, so even if they are in compliance in one, they may still be in violation of another.
Survey Supplements Privacy Symposium April 28
The White & Case Global Privacy Law Survey, now in its third annual edition, documents key trends, issues and developments in privacy law in 22 commercially prominent jurisdictions around the world: Australia, California, Canada, China, European Union, France, Germany, Hong Kong, Hungary, Italy, Japan, Malaysia, Mexico, New York, Ontario, Poland, Quebec, Russia, South Korea, Spain, the United Kingdom and the United States. The non-sovereign jurisdictions of California, New York, Ontario and Quebec are included as they are have rules that may go beyond federally-enacted laws.
The first such in-depth review and analysis of global privacy law available to the general public, the Survey was initially launched in 2002 to supplement the Firm’s annual Global Privacy Law Symposium, at which White & Case lawyers, clients and guests discuss privacy law developments. This year’s Privacy Law Symposium is being held Wednesday, April 28, in the Firm’s New York, London, and Frankfurt offices, linked by video-teleconference.
Obstacles to Marketing
Describing the challenges a company faces coping with spam law around the world, Raskopf used the hypothetical example of a business that plans to launch an e-marketing program to promote a new product. The company can legally send an unsolicited commercial email (UCE) to consumers in the United States provided the recipients are given the opportunity to “opt-out” of receiving future emails from the company. However, to send the same UCE to jurisdictions like Germany and Italy, the company must first get express approval from the recipient (called “opt-in”).
“Gathering approval from each recipient in those places could take considerable time and money and could eliminate a majority of the people you hope to reach, obviously impacting the success of the campaign,” says Raskopf.
Right of Action Differs Widely
The Survey finds that jurisdictions also vary significantly as to who has a right of action against alleged spam-mailers. For instance, jurisdictions such as Germany, Mexico and South Korea give spam recipients the right to file a suit, while jurisdictions like the U.S. do not, although they give Internet service providers (ISPs) adversely affected a right of action.
“Many ISPs are taking advantage of this right as evidenced by the number of suits filed just last month by AOL.com, Earthlink, Microsoft, and Yahoo! in the United States,” says noted New York data privacy and computer lawyer David Bender, who is general editor of the White & Case Survey. “And while class-action type lawsuits aren’t as widely accepted in the EU as they are in the U.S, if enough individual spam recipients got involved, it could prove extremely costly for a company, not only in terms of fines and legal fees, but also in generating negative publicity.”
CAN-SPAM Under Pressure
Bender adds that because so many of the spam laws are new, it’s too soon to determine their impact, increasing market uncertainty.
“If the CAN-SPAM Act doesn’t effectively help reduce the number and type of spam that U.S consumers receive, Congress will likely be pressured to go further and adopt requirements similar to those of California, which currently has some of the most restrictive spam rules in the U.S. If compliance with such rules becomes too onerous, legitimate businesses may simply eliminate e-marketing campaigns completely. This could negatively impact profitability,” says Bender.
A summary of key findings of the Survey is found below. To obtain a copy of the 2004 White & Case Global Privacy Law Survey, please contact Sandi Sonnenfeld at ssonnenfeld@whitecase.com or download it at www.whitecase.com/2004_privacy_survey.pdf.
About White & Case
White & Case LLP is a leading global law firm with more than 1700 lawyers practicing in 38 offices in 25 countries. Global Counsel consistently ranks White & Case among the top global law firms. The Firm’s privacy lawyers counsel clients on all aspects of privacy law, including privacy policies, privacy statements for web sites, the right to monitor employee electronic communications, and specific procedures that may be helpful in avoiding privacy-related litigation. The Firm’s privacy practice pioneered a proprietary methodology for conducting privacy and data-protection audits, which identify and analyze, in detail, the client’s collection, use, disclosure, and cross-border transfer of personal information, and provide advice as to modifications to the company’s policies and practices.
