Spam: Can the law offer any relief?

Anybody who is plagued by unsolicited emails can expect little relief from a tightening of anti-spam legislation, according to two experts close to the situation.

While responsible companies that already toe the line will adjust their business practices according to the proposed EU Communications Data Protection Directive, the problem will always be the unscrupulous marketers and conmen who care little for what laws they are breaking.

David Naylor, partner at Morrison and Foerster, said: "The actions of spammers are largely covered by data protection laws. In order for somebody to be spammed the sender must have their email address and email addresses normally constitute personal data."

Naylor believes that any responsible marketing company will therefore be aware of the onus upon them to comply with current data protection laws.

"Reputable companies do not want to be in breach of data protection laws," said Naylor, though he claimed it is not always the law which wields the greatest power in such matters. "Newspapers and the media are becoming increasingly aware of the problem of spam and for a company which is found to be in breach of data protection laws the negative coverage they receive can sometimes be just as harmful to their reputation as the legal action they may face."

However, Naylor's point underlines the fundamental truth in the battle to beat spam. Reputable companies will play by the rules. Disreputable ones won't.

"In general, reputable companies are already compliant with many of the laws governing spam. However, there are a lot of companies located offshore, outside Europe - and outside EU jurisdiction - who are spamming into Europe."

European legislation is set for change this year, with the UK looking to adopt the EU Communications Data Protection Directive by October. Government consultation on this draft directive is due to close on 19 June.

The biggest change in the new legislation will be a ruling that marketers will be prohibited from contacting anybody unless they have first gained prior permission. The only exceptions to this rule will be where a prior business relationship exists.

However, again, the success of such a change relies entirely on companies obeying these rules.

Adrian Moss, CEO of dealgroupmedia, which handles direct marketing for a number of blue chip UK companies, said: "Spam is a major issue and I would genuinely welcome anything which will reduce the problem of unsolicited email - but I don't think the EU Directive is it."

Like many other companies working in the direct marketing sector, Moss claims his company has been tarnished by the reputation earned by unscrupulous marketers.

"I would welcome anything that would discourage the cowboys and highlight the benefits of legitimate direct marketing. A lot of email marketing is being dragged into disrepute by unethical marketers," said Moss.

Among dealgroupmedia's list of clients are major UK firms such as the AA, BT, Carphone Warehouse, John Lewis, Sky and Virgin and according to Moss it would be far too damaging to be tarred with the spam brush.

"With the companies we represent it would be a massive risk to breach any moral, ethical or legal guidelines or laws," he said.

But there are far too many companies out there who do not share the same sense of responsibility.

"We have to remember that much of this spam is not coming from with Europe. Much of it is coming the States. The EU Directive will not be able to prevent any spam originating from outside the EU."

MoFo's Naylor is resigned to the fact that victory in the war on spam will have more to do with evolution - and patience - than technology or legislation.

"As soon as companies stop getting the kind of response rates required to make their business profitable this kind of direct marketing will start to die out," he said.

"I don't see us reaching a situation where spam becomes such a problem that email becomes unusable."