In 2002, the European Commission passed the Directive on Privacy and Electronic Communications. It was intended to ensure that by the end of 2003, all member states reformed the use of unsolicited e-mails, telephone calls and junk mail. In essence, it was passed to outlaw spam.
The British Government duly passed the Statutory Instrument 2003 No 2426, and consumers were supposed to be protected from spam by the newly formed office of the Information Commissioner. The regulations were open to wide interpretation but in their strictest sense they required web marketeers to stop using what is termed as "soft opt-in". A soft-opt-in is, in my view, quite simply a pre-ticked box that is accompanied by text saying something similar to "I wish to receive information from carefully selected third parties with offers that may be of interest to me". The EC Directive was supposed to make this box unticked, so that a consumer must actively tick the box and thereby signal their consent to receiving what are in effect unsolicited e-mails, phone calls and junk mail from third parties.
In the same way, the new legislation was also supposed to stop the practices of asking users to tick a box if they did not wish to receive communications. This is termed as a "soft opt-out", here a web marketeer would have an unticked box and text saying something like "I do not wish to receive information from selected third parties". This practice was ruled out by the EC because it implies consent without any action from the consumer when, in reality, most people would not wish to receive these communications.
I'm ashamed to say that when the new legislation came in, I was disappointed because it seriously affected my company's ability to sell the data that we collected, because I knew that many of our users would not wish to actively request to be bombarded with unsolicited emails.
However, in fear of the law and a strong believer in consumer rights, I ensured that we applied all the necessary changes to our registration procedure immediately and made changes to our terms and conditions to reflect this change.
If you look at my website, QuickQuid.com, you'll notice that the opt-in boxes are unticked and that you must tick them to receive marketing messages from our third party partners. In addition, we took the step of actually listing the third parties that you would receive messages from, so that you can pick and choose the offers that are relevant to you, the consumer.
This also makes good business sense, since we can charge more for the data because its so specific, its 100 per cent opt-in and the user actually requests the information from that particular advertiser.
However, many other companies have yet to adopt the EC directive or the UK statutory instrument and are providing consumers with a raw deal.
It's not just the law that requires this, but it is also a condition of membership of the Data Marketing Association (DMA), the industry's self-regulator. As it happens, Quickquid is not a member, the fees are too high, but we submit our lists to their free "List Warranty Register" so that our clients can see that we comply with all UK and EC legislation. The DMA's code of conduct states that, "Members must not provide a pre-ticked opt-in box for consent to send e-mail marketing". The regulations also state that a consumer signals consent to receiving communications by "for example, having ticked an opt-in box".
The DMA sponsored, as always the International Data Marketing Fair held in Earls Court earlier this month. It's interesting to note that the registration for the event did not comply with either the UK or the EC legislations, or the DMA's own code of conduct. When registering as a delegate, you are asked to tick a box if you did not wish to receive information from "future International Direct Marketing Fair events", information from "Reed Exhibitions UK Limited", and, most importantly, "information about other companies which have been approved by us". It's of no surprise therefore, that all the e-mails that I did receive from the IDMF went straight to my spam folder without me even noticing them.
Some further investigation showed that the DMA's own website does not comply fully with the legislation. They ask you to tick a box "If you do NOT want your details to be passed on". The data that is therefore provided by the DMA to their advertisers is therefore not opt-in in the strictest sense of the word.
Having seen these blatant violations of the EC's anti-spam initiatives, it did make me wonder whether I should join the crowd and flout the EC Directive on Privacy and Electronic Communications. I won't because I actually believe that the EC was right to protect consumers and that in the long-run my business will benefit from full compliancy and the knowledge that we're safe from any complaints to the Information Commissioner.
My belief in the wisdom of the EC is however, surprisingly, shared by the United Kingdom Independence Party, whose own online registration form complies with the legislation, as do the Conservatives.
Of course, as many highly paid lawyers might say, it is a matter open to interpretation, but the view of my company's legal advisers, our data sales agency and our clients is that the directive means that in order for a user to consent, they must actively "tick a box" to opt in to receive communications.
So when you turn to the pro-European Labour party, which helped to put the Directive on the statute books, you find that its own website utilises the pre-ticked box, inactive approach.
Benjamin Cohen is the founder of QuickQuid. He will be writing an occasional diary for Times Online on life for a small businessman in the tech sector
