Articoli e Dottrina

per le libertà e i diritti del cittadino, la giustizia e gli affari interni del Parlamento europeo sulla proposta di direttiva COM (2000) 385

Emendamenti da 41 a 48 relativi all'art. 13 della proposta di direttiva COM (2000) 385 (testo in inglese)

Il testo conseguente agli emendamenti è quello sulla destra, mentre quello sulla sinistra corrisponde alla stesura originaria come proposta dalla Commissione UE.

Le parti in neretto sono quelle modificate, ovvero aggiunte dalla Commissione parlamentare per le libertà e i diritti del cittadino, la giustizia e gli affari interni.

General directive 95/46/EC already enables it to be established when the processing of personal data for unsolicited communication is lawful, according to "principles relating to data quality". The general directive also establishes a series of criteria for "making data processing legitimate" (e.g. when "unambigous consent" of the data subject is expressed, but also when public data, freedom of expression or vital interests of the data subject are involved), that it would be wrong (and technologically "non-neutral") to eliminate on technological grounds.

Opt-in and opt-out systems are both used in the Member States, and the subsidiarity principle would tend to argue against the imposition of a common practice, which would in any case co-exist with hundreds of national legislations around the world. Opt-out systems are already specified by the e-commerce Directive (2000/31) and the distance-selling Directive (97/7).

1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.

1. The use of automated calling systems without human intervention (automatic calling machines) or facsimile machines (fax) for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent

An opt-in solution for e-mail marketing will penalise responsible marketers, but not stop illegitimate ones from continuing to send unsolicited e-mails. Spamming is already covered by special protection measures including Article 7 (1) of Directive 200/31/EC and Articles 6 and 7 of the general data protection Directive 95/46/EC. Stricter legal requirements will only have the effect of reducing the impetus for business to develop effective software solutions within the EU.

1a. In addition, Member States shall take appropriate measures to ensure that other commercial communications by a service provider established in their territory shall be identifiable clearly and unambiguously as such, as soon as they are received by the subscriber.

The distance-selling Directive in Article 10 establishes the opt-in system (consumer’s prior consent) for faxes or automatic call systems. However, it specifies the opt-out system for other electronic communications (which includes e-mail messages). The proposed directive defends the opt-in system for the sake of supposed increased harmonisation among all European countries. However, it will only harm e-commerce in Europe vis-à-vis other parts of the world.

Moreover, Article 7(2) of the e-commerce Directive also establishes that the opt-out system shall apply. This will lead to great uncertainty for ISPs and a serious lack of consistency among different EU pieces of legislation.

It is understood that the objective of the European Commission is to combat so-called spamming. However, sending direct marketing via e-mail should be considered as a legitimate business activity since it involves something that is completely different from spamming. The spamming should not be considered as a direct marketing activity, since, in the majority of cases, the spammed consumer cannot identify the origin of his data.

The opt-out system will promote e-commerce in Europe, one of the major objectives of the eEurope initiative. The opt-in system will be a barrier to the same and will help encourage direct marketing companies to set up their business outside the European Union, where the legislative framework allows the opt-out for direct marketing purposes.

1b. Member States shall ensure that service providers undertaking unsolicited commercial communications by means others than those in paragraph 1 regularly consult and respect the opt-out registers in which natural persons not wishing to receive such commercial communications.

2. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, by means other than those referred to in paragraph 1, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation.

2. Member States shall take appropriate measures to ensure that, free of charge and in an easy and clear manner, unsolicited communications for purposes of direct marketing, by means other than those referred to in previous paragraphs , are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation.

2a. The practice of sending electronic messages for the purpose of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made shall be prohibited.

The explicit reference to the fraudulent practice of disguising the identity of the sender could strengthen anti-spamming efforts, even if not only the general directive, but also other directives already protect the consumer (84/450 on misleading advertising, 93/13 on unfair terms in consumer contracts and 98/6 on the indication of prices).

2b. Senders of unsolicited electronic mail shall supply with their messages an address to which the recipient may send a request that such communications cease.

3. Paragraphs 1 and 2 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.

3. Previous paragraphs shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.