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Several regulations have strengthened rules on direct marketing and those who contravene these rules are now guilty of an offence that can be prosecuted by the Data Protection Commissioner.

Each unlawful message or call will constitute a separate offence and be subject to a fine of €3,000. Similar regulations are either in force or are being enacted in other countries within the European Economic Area (EEA), which explains why most unsolicited advertising email (spam) which you may receive has been sent from outside the EEA.

The regulations state that an e-mail, SMS, MMS or a fax for the purpose of direct marketing shall not be sent to an individual unless that individual recipient has given prior consent to the receipt of such communications. The only exception is where the individual is a customer of the sender and the message is associated with that relationship.

In that context, businesses are permitted to send text messages and emails to customers, promoting their products, where the customer has:

• Provided his or her contact details to the business
• The opportunity to object, free of charge, to the sending of such messages

Where the recipient is not an individual consumer, but a business, or an individual in a business context, a phone call may be made or an SMS/MMS/e-mail or fax sent for the purpose of direct marketing as long as the sender has respected any opt-out preference expressed by the recipient.

In the case of unsolicited advertising emails (spam), these must be clearly and unambiguously identifiable as such, and include the letters "ADV" (advertisement) or "UCE" (unsolicited email in the subject line. There is a prohibition against sending direct marketing emails which conceal the identity of the sender, or which fail to contain a valid address to which the recipient may send a message asking that no further emails be sent.

The first successful prosecution in Ireland under the new legislation took place in September 2005, when a company was fined for sending marketing messages to mobile phones without the consent of the phone subscribers.

One further area covered under recent legislation is the sharing of mobile phone traffic or location data, services which come under the heading of 'value-added services'. In effect, the sharing of such data between a telecommunications provider and another entity is prohibited unless:

• The phone owner has consented to this sharing
• The phone owner has been informed of the type of traffic data and location data that may be shared, for what purposes this will be used, and for how long it can be shared

This provision eliminates the potential for telecommunications providers to share, for example, location data with retail outlets near a phone user's particular location at any one time. The prospect of receiving a series of marketing text messages from local retailers as a phone user walks down the street is clearly unwelcome. It is now prohibited - unless the phone user has given an informed consent to such sharing of information.

In addition, the launch of a National Directory Database (NDD) as a national marketing opt-out database has increased protection for telephone subscribers. All subscribers now have the right to get their preference not to receive marketing calls recorded in the NDD. Further details are available from the Data Protection Commissioner.

A person who wishes to make a marketing call either to a residential or commercial subscriber must respect a preference expressed in the NDD. This obliges telemarketers to check the NDD before making such calls.

d B2B v B2C issues
There is a clear recognition in law that a consumer should be afforded more protection than an individual dealing as part of a business. This is because it is assumed that a business will have the necessary resources to properly study contracts before entering into them. Although a consumer is assumed to know the law, unlike a business, the reality is that consumers know relatively little about the law, and in many cases will sign a contract without having studied its contents.

For these reasons, and to protect the consumer from unscrupulous traders, a considerable body of legislation has been enacted, and many of these consumer protections cannot be 'contracted out'. So, if a consumer signs a contract while buying a digital camera, and the fine print of the contract stipulates that the manufacturer shall not be liable for any defects in the camera, then that provision will have no legal effect. Consumers, in other words, do not have to spend their day examining contracts before making a decision to buy - if part of a contract seeks to override their basic consumer
rights, that part will be ignored by the courts in any subsequent legal action.

Examples of prohibitions on 'contracting out' in the context of eBusiness can be seen in the European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001. Regulation 18 says: "A consumer may not waive the rights conferred on him or her under these Regulations." In other words, any rights which the consumer is given by the
regulations cannot be limited simply because the consumer has signed a contract which seeks to do so.

Much of the legislation covered by this guide applies in the main to Business to Consumer (B2C) transactions, and does not apply to Business to Business (B2B) transactions, or applies to a lesser extent.

Related Links

Learn more about regulations governing spam

Access the full EU regulations on distance selling