Worst ePrivacy B2B fears averted

The European Commission today published its text for the replacement for the ePrivacy Directive, which will now be a regulation and apply equally to all member states. It softens many of the clauses that could have had a significant negative impact on many business-to-business (B2B) marketers.

The DMA obtained a leaked copy of the Commission’s proposal before Christmas and was concerned about some of the proposed changes.

This leaked version stated that B2B marketing via electronic channels would require a prior opt-in consent. This would mean any marketer wanting to email staff members of limited companies, publically limited companies, local authorities, other government departments and limited liability partnerships (corporate subscribers) would have to obtain prior opt-in/subscribe consent from individual staff members, a huge change and challenge for the marketing industry.

EU Commissioner for the Digital Economy and Society Andrus Ansip today announced the final version of the Commission’s proposal.

Bear in mind that this is only the beginning of the legislative process as the EU Parliament, the directly elected body, will have a chance to make amendments to the text, as will the EU’s Council of Ministers, which represents the 28 member states.

The text of the final version of the Commission’s proposal has moved away from this draconian position and does not require opt-in consent for B2B email marketing to corporate subscribers, although as a general rule consent will be required for sending electronic marketing to consumers. However, the current rules on the existing customer/soft opt-in exemption for consumers and staff members of sole traders and unincorporated partnerships are repeated in the proposal.

Instead of requiring prior opt-in/subscribe consent for B2B electronic marketing to corporate subscribers there is a provision for member states to ensure that corporate subscriber’s legitimate interests are adequately protected. This means ensuring that staff members of corporate subscribers are able to easily unsubscribe/opt-out from receiving electronic marketing.

However, the current rules on the existing customer/soft opt-in exemption for consumers and staff members of sole traders and unincorporated partnerships are repeated in the proposal.

If a business obtains an email address for either a staff member of a sole trader or unincorporated partnership or an individual consumer during the course of negotiations for, or a sale of a product or service then that organisation can use their electronic marketing contact details for unsolicited direct marketing purposes if:

1) The marketing is for similar products or services produced by that organisation

2) The organisation told the recipient at the time of collecting their electronic contact details that such details would be used for unsolicited electronic marketing communications and provided a clear unsubscribe/opt-out at the same time.

3) The organisation provided a clear opt-out/unsubscribe option in the each and every electronic marketing message if the recipient did not opt-out/unsubscribe at the point of data collection.

Member states will need to create their own domestic legislation if they want to continue with an unsubscribe/opt-out system for unsolicited telemarketing calls. If they do not then subscribe/opt-in consent would be needed. The DMA will be lobbying to ensure that the UK maintains its opt-out/unsubscribe approach to telemarketing.

Commissioner, Andrus Ansip, said: “The Commission is proposing new rules on privacy and protection of electronic communications data for people and business.

“Our proposal builds on the gold standards of the General Data Protection Regulation agreed last year.

“Our new rules will not only apply to traditional services like voice or SMS, but also to internet-based communications services or future services that allow any type of communication,” he said.

The new text confirms the extension of ePrivacy rules to any marketing channel making use of internet-based services. This includes services like Skype or WhatsApp.

The General Data Protection Regulation (GDPR) went through the same process of dialogue between the Commission, Council and Parliament and took seven years to complete. The proposed ePrivacy text says that the new Regulation will apply from 25 May 2018 to match GDPR implementation. The text did remove a mention of a six month grace period mentioned in the leaked text. This emphasises how important it is for the Commission to have the new ePrivacy rules in force at the same time as the GDPR.

This timeline also means that UK will not have left the EU when the new ePrivacy rules come into force and as with the GDPR will therefore apply in full to the UK. However, the UK Government will have to decide whether to amend or repeal the new ePrivacy rules as part of its general review of all EU legislation once the UK leaves the EU. Such a review is likely to be a long process.

Rachel Aldighieri, MD at the DMA, said:

“The draft of the ePrivacy Regulation leaked late last year included some changes to the rules that caused serious concern across the B2B marketing industry, with the possibility of email marketing for these businesses moving to opt-in. If they had gone ahead, these alterations to the law could have had a profound and negative effect on the UK economy, so we welcome today’s announcement from the European Commission. The DMA will continue to lobby the EU Parliament and Council to ensure that the rules for B2B marketers in the final version of the Commission’s proposal are maintained in the final text. We will be working closely with our European partners at FEDMA to achieve this and continue to protect the B2B marketing sector that is so vitally important to the UK economy.”

The DMA will be monitoring this process closely and keeping members updated.

The full text is available here.