Joint Committee On Human Rights Seventeenth Report

4 Consumer Protection (Unsolicited E-mails) Bill

Date introduced to the House of Commons

Date introduced to the House of Lords

Current Bill Number

Previous Reports

10 June 2003

House of Commons 119


4.1 This 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.

4.2. This would interfere with the right to freedom of expression under ECHR Article 10.1, which protects commercial expression, although an interference with it is easier to justify under Article 10.2 than an interference with (for example) political expression.

4.3 An interference is capable of being justified if it meets the criteria set out in ECHR Article 10.2. The interference would, in our view, be likely to meet the requirement 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, namely the hard disk of a computer which can be adversely affected by unwanted messages and viruses).

4.4 The remaining question is whether the interference would be '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. The existence of a pressing social need is a matter of legislative judgment, but in our view it could legitimately be concluded that there is such a need. The issue of proportionality is more difficult. Few people ask to receive advertising material, so nearly all advertising by E-mail would become criminal. That might seem an unnecessarily intrusive approach when there would be a way of protecting people's right to be free of nuisance E-mails without totally banning advertising by E-mail. For example, 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 might 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 instance because the recipient's E-mail address had recently changed).

4.5 In the light of this, our Chair wrote to the Member responsible for the Bill, Mr Paul Flynn MP, to draw the above matters to his attention. Mr Flynn replied in a letter dated 17 November 2003. The correspondence is published as an appendix to this Report. We draw it to the attention of each House in the hope that it will help to clarify the issues addressed in it.

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Prepared 24 November 2003