EU chokes on e-mail spam decision

Decision makers in the European Union (EU) continue to flip-flop on legislation designed to deal with unsolicited commercial e-mail, commonly known as spam, and whether to "opt-in" or to "opt-out" remains in question.

In the most recent move, a committee for the European Parliament voted late Monday to back a largely unchanged second version of a report on data protection drafted by Italian MEP (Member of Parliament) Marco Cappato, according to a statement from the EU Citizens' Freedoms and Rights, Justice and Home Affairs Committee. The move effectively reaffirmed its vote of three months ago to back the opt-out policy recommended in the report.

"Opting-in" to a company's mailing list requires an affirmative, physical act on the part of the potential recipient of the spam, whereas with the "opt-out" approach a person is assumed to be a willing recipient unless they tick a box to remove themselves from a company's list.

The report made a second appearance in the Parliament after it had been effectively thrown out by the EU Council of Ministers in September, forcing it back to its Committee stage.

In July, the Committee voted on a directive to be added to the Marco Cappato report, stating that it should be legal for companies to send spam by e-mail or SMS (short message service) mobile text messages, as long as the message includes an address that allows recipients to ask to be removed from the mailing list. This opt-out option has been favored by many direct marketers.

But in September, in its plenary session in Strasbourg, France, the Council of Ministers of the EU voted in support of a new law banning the use of unsolicited e-mail and so-called inertia marketing for the promotion of financial services; the opt-in version.

Monday's vote would leave it up to individual member states to decide on an opt-in or -out policy regarding unsolicited e-mail from marketing mailing lists. But the Committee voted to recommend an opt-out amendment, that would allow subscribers to request omission from a printed or electronic directory.

Therefore, while the Committee would like to make it legal for companies to compile printed or electronic directories, it would be up to the individual member states to decide whether e-mail solicitations without specific authorization would be legal, a European Parliamentary spokeswoman said.

Under the Committee's amendment, "subscribers would be able to request omission from a printed or electronic directory," the spokeswoman said but she could not explain how a person could make such a request if they didn't know they were on a subscriber list in the first place.

As part of that amendment, "additional data to those necessary to identify a particular subscriber should only be listed with his or her prior consent," the spokeswoman said.

On Monday's vote, the Committee did vote to allow direct marketing by fax, SMS or automated calling systems only with prior consent from subscribers, she added.

The report will be debated and voted on yet again during the Parliament's plenary session in Strasbourg in November, but the Committee's recommendation does historically carry a great deal of weight on the Parliament's final vote, the spokeswoman said.

The current approach to spam is fragmented in Europe, with individual countries devising their own policies. Five European countries -- Finland, Denmark, Germany, Austria and Italy -- have passed opt-in regulation on spam and have been pushing for the EU to adopt a pan-European anti-spam law.

But it appears that there is just as much fragmentation within the EU itself, with the European Parliament and the European Commission torn over how to handle the issue.

"Yes, the Parliament took a less stringent view than the Commission on spam," the European Parliamentary spokeswoman said.

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