Joint Committee On Human Rights Seventeenth Report

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 response.

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 problems.

14 November 2003

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