Appendix 4: Consumer Protection (Unsolicited
E-mails) Bill |
Letter from the Chair to Mr Paul Flynn MP
As part of its function to consider human rights
in the United Kingdom, the Joint Committee on Human Rights examines
all bills introduced to either House with a view to reporting
to each House on their compatibility with Convention rights under
the Human Rights Act 1998, and with other rights which arise in
international law under human rights instruments by which the
United Kingdom is bound. The Committee is currently considering
the human rights implications of the Consumer Protection (Unsolicited
E-mails) Bill, which you introduced to the House of Commons.
As you know, the Bill would amend the Consumer Protection
(Distance Selling) Regulations 2000 by adding a new regulation
24A, making it an offence to send unsolicited commercial E-mails.
A commercial E-mail would be one that advertises goods and services.
This would interfere with the right to freedom of
expression under ECHR Article 10.1. That Article protects commercial
expression, although an interference with it is easier to justify
under Article 10.2 than an interference with (for example) political
expression. The Bill would be likely to meet the requirement in
Article 10.2 of being 'prescribed by law', and would serve a legitimate
aim, namely the protection of the rights of others (the right
to respect for private life under ECHR Article 8, and the right
to be free of unwanted interference with one's property, to wit
the hard disk of a computer which can become clogged up with unwanted
messages and infected by viruses).
However, the Committee is concerned that the interference
might fail the test of being 'necessary in a democratic society'
for that purpose, that is a proportionate response to a pressing
social need, so as to be justifiable under Article 10.2. While
there might well be a pressing social need to interfere with freedom
of expression for this purpose, the issue of proportionality seems
to the Committee to be more difficult. The Bill would, in practice,
make nearly all advertising by E-mail criminal. That might be
regarded as an unnecessarily heavy-handed approach when there
could be less intrusive ways of protecting people's right to be
free of nuisance E-mails. For example, the mischief at which the
Bill aims could be more precisely targeted. Alternatively, a register
could be established of people who do not want to receive such
E-mails, and it could be made an offence to send the E-mails to
those people. Legislation could also provide for a defence where
it could be shown that the sender did not know, and had no reason
to know, that the recipient is on the list (for example because
the recipient's E-mail address had recently changed).
In the light of this, the Committee is considering
whether to draw the attention of each House to the human rights
implications of the Bill. The Committee understands the difficulties
which the sponsors of private members' bills, with limited resources,
often face in responding to questions from the Committee about
the human rights implications of their bills. Nevertheless, without
suggesting that you are under any obligation to respond to its
concerns, the Committee would of course give full weight to any
representations which you might wish to put before it.
The Committee will be deciding on 17 November 2003
whether, and if so how, to report to each House on the Bill, and
so would be unable to take account of representations received
after 14 November 2003.
5 November 2003
Letter from Mr Paul Flynn MP to the Chair
Many thanks for your letter regarding the above Bill.
There are several points which I wish to make in response to the
matters you raise.
Firstly, the Bill would prohibit only unsolicited
emails, and whilst protecting the privacy of Internet users and
freeing them of 'unwanted interference' with their property, it
does not prohibit any communication, only those to whom that communication
can be sent. Therefore the freedom of speech of individuals and
companies is protected, whilst simultaneously safeguarding the
privacy of individuals.
The EU Privacy and Electronic Communication Directive,
2002/58/EC of the European Parliament and of the Council, establishes
opt-in as the default for commercial e-mail, thus banning unsolicited
commercial communications. The Directive states that it is "justified"
to require "prior explicit consent" of recipients for
commercial email (Article 40). HC Bill 199 is consistent, and
proportional, with this Directive.
The alternative that you suggest, of a register consisting
of people who do not wish to receive such emails (opt-out), is
unlikely to comply with the above EU Directive. Customer relationships
are unaffected by this directive which comes onto force on 11
December 2003. Those wishing to receive commercial email retain
their right to do so. Therefore, HC Bill 199 is a proportionate
response in light of the EU regulations.
Further, the Bill proposes similar legislation to
that which currently governs facsimile communication, under the
Telecommunications (Data Protection and Privacy) (Direct Marketing)
Regulations 1998. These Regulations prohibit unsolicited commercial
fax to individuals. The Consumer Protection (Unsolicited E-mails)
Bill is consistent with this legislation, and adopts a proportionate
On the matter of demonstrating a pressing social
need for this legislation it is important to note that the vast
volume of commercial e-mail is threatening to overwhelm the e-mail
system. AOL, one of the largest Internet Service Providers, was
reported to be blocking an average of 780 million unwanted messages
every day, whilst its average delivery was 680 million (The Economist,
April 24 2003). This is replicated across the Internet Service
Providers (ISPs), and constitutes a significant risk to their
ability to maintain email services. Steve Linford, a renowned
fighter of unsolicited commercial mail, has stated that the "email
system is on the edge of meltdown" (The Observer, 1/06/2003).
Unsolicited commercial email now accounts for over half of all
emails sent (MessageLabs, 2003). The sheer scale of the problem
caused by Unsolicited Commercial Mail, and the likely repercussions
for the email system are such that this legislation is entirely
proportional. The extent to which email is used for individual
and business purposes means that safeguarding access to email
is a pressing social need. It is also important to note that the
collapse of the electronic mail system would inhibit the right
of free speech far more than its regulation.
Many other European countries have introduced similar
legislation without contravening the proportionality inherent
in the European Convention on Human Rights. Denmark and Austria
have both prohibited the sending of commercial email without the
prior permission of the recipient, and both have avoided breaching
the Convention on Human Rights. Directive 2002/58/EC states that
there should be harmonisation on these issues amongst European
countries in order to combat the threat posed to human right,
and the effectiveness of the email system. It notes the difficulties
that are caused for the electronic communication networks and
terminal equipment (Article 40). It is on this basis that it is
considered justifiable to ban unsolicited commercial email.
The Bill is of such a nature that any misinterpretation
that would adversely affect a person's human rights would be extremely
difficult. The terms are clearly and unambiguously defined, and
the limits of the Bill clear. Further to this the Human Rights
Act, 1998, states that all legislation must be read and given
effect in such a way that it complies with the relevant articles
and protocols of the European Convention on Human Rights. I maintain
that HC Bill 199 does not contravene the European Convention on
Human Rights, and that the nature of the Bill and existing UK
legislation prevents any interpretation that may damage human
rights as set out in the Convention.
In this situation, the response, which targets unsolicited
commercial email alone, is entirely proportional. It protects
the privacy of individuals, whilst ensuring the right to free
speech is upheld. Further it is consistent with approaches taken
by the Houses of Parliament, the European Council and Parliament,
and other European signatories to the Convention on Human Rights.
This is urgent legislation that seeks to protect Internet users,
and ISPs, from a problem that violates human rights specified
in the European Convention as well as causing very real practical
14 November 2003