Deze studie is
geschreven in opdracht van de Europese Commissie en
gecoördineerd door Price Waterhouse Coopers in samenwerking
met de Katholieke Universiteit Tilburg en de Universiteit
Utrecht en afgerond op 17 augustus 2000.
Onderzocht wordt welke regels er op Europees niveau gelden
ten aanzien van commerciële communicatie,welke van die
regels achtereenvolgens geheel overeind kunnen blijven in de
informatiemaatschappij, waar vanuit een oogpunt van
consumentenbescherming verhelderingen zijn vereist, welke
regels duidelijk niet deugen en waar zich hiaten vertonen.
1. Sources
001 The existing body
of European material law on commercial communications consists
of the relevant primary rules of the EC Treaty itself and the
accessory decisions of the Court, as well as the more specific
European rules on advertising and marketing. The last category
could be divided into:
(a) General rules,
pertaining to all forms of advertising (the directive on
misleading and comparative advertising: directive
84/450/EEC, as amended by 97/55/EC).
(b) Rules which are
restricted to certain media (the TVWF directive, the
directive on Electronic Commerce and the directive on
Distance Selling, respectively directive 89/552/EEC, as
amended by directive 97/36/EC; directive 2000/31/EC;
directive 97/7/EC).
(c) Rules which are
restricted to certain products (foodstuffs, cosmetics,
pharmaceuticals, tobacco products, respectively directive
79/112/EEC, as amended by directive 89/395/EEC; directive
76768/EEC as amended by directive 88/667/EEC and directive
93/35/EEC; directive 92/98/EC; directive 89/622/EEC and
directive 98/43/EC).
(d) Rules which are
restricted to certain services (Consumer Credit, Travel,
respectively directive 87/102/EEC; directive 90/134/EEC).
(e) Rules which concern
certain target groups (art. 16 of the TVWF directive).
(f) Rules which concern
certain advertising tools (the Trade Mark directive and the
directive on price indications, respectively directive
89/104/EEC; directive 98/6 EC; the TVWF directive contains
rules on non spot advertising and sponsoring).
002 Relatively
speaking, this body of law is rather small. Notably, there
exists only one general directive. This incompleteness is
particularly striking in the field of specific marketing
methods like promotional offers, lotteries and competitions.
Specific regulation for advertising directed towards children,
sponsoring, product placement and the like is only to be found
in the TVWF directive.
2. Introduction
003 What should be the
touchstone when assessing whether a legal framework is
Information Society proof in view of consumer protection? This
is a question that merits attention. It is generally
understood that the 'legitimate expectations of the consumer'
constitute the framework for the protection of the consumer.
[1] These expectations, which
for example, operate in privacy law
[2] and in contract law, have
not yet been of significant practical value in advertising
law, or to put it in modern terminology, in the law on
commercial communications. Nevertheless, they do operate in
certain fields of this branch of the law, for example in the
field of the law on misleading advertising.
[3] The credibility of
certain statements is indeed dependant on the legitimate
expectations of the consumer: highly exaggerated claims
deserve less credibility that factual statements and are
therefore less vulnerable for a complaint as regards
misleading advertising than the last mentioned statements. It
is a matter of research to know whether the 'legitimate
expectations of the EU Information Society consumer' could
function as an overall guideline in the law of commercial
communications. A criterion like this could for instance at
first sight be of considerable value in determining the
borderline between forbidden surreptitious advertising and
consumer information on the Internet.
004 The principles
ruling the lawfulness of commercial communications in an
off-line world certainly constitute the expectations of the
Information Society consumer. He or she would not expect
things to be completely different from his or her experiences
with advertising and the like in an offline world. The widely
acknowledged principle that 'what is valid off-line, should
also be valid on-line' has to be accepted as a guiding
principle.
005 However, off-line
rules do not completely cover new technologies on the
Internet. Framing, deep linking, the use of so-called meta
tags provide for information search methods which are unknown
in the off-line world and call for new approaches by the
existing law on commercial communications. This is also the
case with the reliability of information on the Internet and
more especially with the borderline between independent
consumer information and commercial communications.
006 Also, the role of
consumers is less univocal in the Information Society.
Firstly, the classical distinction between consumer and
producer is blurring. Consumer (groups) are offering goods and
services on-line more and more. Secondly, one may also
question whether the Information Society consumer is a better
informed (and more emancipated) consumer than the off-line
consumer. In order to determine whether a description, trade
mark or promotional description or statement is liable to
mislead the purchaser, the Court of Justice of the European
Communities has taken into account the presumed
expectations of an average consumer who is reasonably
well informed and reasonably observant and circumspect .
[4] In some cases this holds
more true for the on-line world: the Information Society
consumer being an active information seeker and, therefore,
presumed to be reasonably well informed, observant and
circumspect. The circumstances of the use of this medium are
also different and point towards this direction. It could be
questionable for instance if the national protective measures
for auctions, should also be applied to an auction on the
Internet where there is more time and deliberation possible
than during a real auction. [5]
007 Whether the
concept of the presumed expectations of an average
consumer who is reasonably well informed and reasonably
observant and circumspect holds true for all advertising
law cases seems questionable. Certainly in unfair competition
cases where matters of confusion are at stake, a concept like
this could lead to a considerable diminishment of protection
against acts of confusion. In case of offensive or shock
advertising, a concept like this seems not to be wholly
adequate, because the average consumer and the vulnerable
consumer alike could be offended by shocking statements. And
even in cases of misleading advertising, this concept should
not always be a primary criterion. The Court of Justice has as
a matter of fact decided that the concept of the average
consumer as described above, in not applicable all cases.
[6] Certainly, the concept
will not hold for vulnerable groups like children.
3. Approach
008 Before going into
the legitimate expectations of the (reasonably well-informed)
consumer towards commercial communications in an Information
Society environment we have to look at the scope of the
concept of commercial communications as defined in the
electronic commerce directive .
009 Article 2 (f) of
the directive on electronic commerce contains a technology
neutral definition of commercial communication. It is defined
as: «any form of commercial communication designed to promote,
directly or indirectly, the goods, services or image of a
company, organisation or person pursuing a commercial,
industrial or craft activity or exercising a regulated
profession». Not considered to constitute a commercial
communication under this directive is information allowing
access to the activities of companies, organisations or
persons (domain names or electronic e-mail addresses). Also
not considered a commercial communication is communication
relating to goods, services or image of the company,
organisation or person compiled in an independent manner,
particularly when this is without financial considerations.
010 Since commercial
communications is a new concept in EC law on advertising, it
is necessary to bring this new concept into line with the
existing definitions on advertising. This is not a problem
that is typical for webvertising. Nevertheless the existing
definitions of advertising of course influence the application
of the concept of commercial communications and vice versa
. Below we will look at the definitions used in various
directives.
011 Directive
92/98/EEC on Advertising of Medicinal Products for Human Use ,
contains a detailed description of advertising which includes
for example also the sponsoring of scientific congresses and
in particular payment of expenses by persons who are qualified
to prescribe or supply medicinal products. The exceptions to
this detailed description are interesting. Answers to specific
questions about a particular medicinal product are not covered
under the definition of advertisement, provided they are not
accompanied by material of a promotional nature.
[7] Factual, informative
announcements, provided they do not contain product claims are
also not covered. Neither are general statements relating to
human health. A restriction as to the independent nature of
this information is not foreseen. Probably the independent
nature is given by the nature of the information itself, being
factual, or being a specific answer to a question and the
like. In this respect two different criteria are used. The
first is the criterion of the definition of commercial
communications, being a criterion that is not linked to the
content of the information but to the way it is produced. The
second is a criterion that is linked only to the content of
the information. Experiences with a definition of
surreptitious advertising on television have taught us that
the first criterion is generally preferable, seen from the
point of view of freedom of speech.
012 VPRO, a Dutch
public broadcasting company was fined (with a symbolic fine)
on account of its showing the wrapping of a MARS chocolate bar
in the TV film 'Hofmann's Honger' whilst clearly not being
paid for this form of product placement. The same approach has
been followed in the Wokkels case. Wokkels dealt with a
children's programme on junk food in which by way of explicit
satire the trade marks of Coca Cola and of Wokkels (a Dutch
make of for potato chips) were shown. Even the European
Commission decided that there was not a breach of Article 10
of the European Convention for the Protection of Human Rights
in fining the broadcasting company for this form of product
placement which certainly was not in the interest of the Coca
Cola Company or the producer of Wokkels potato chips. The
Commission accepted that the interference complained of was
intended to protect the right of young children to be
protected against indirect advertisement in television
programmes primarily aimed at a young audience and the right
of companies to be protected against unfair competition. It
considered the interference not to be unreasonable or
disproportionate in view of the target audience of the
programme and the specific position of the applicant in the
Dutch broadcasting system and the respective amounts of the
fines imposed. [8]
013 Directive 98/43/EC
on advertising and sponsorship of tobacco products defines
advertising as any form of commercial communication with the
aim or the direct or indirect effect of promoting a tobacco
product, including advertising which tries to circumvent the
advertising ban. Noteworthy in this respect is that the notion
of indirect effect is not accompanied by restrictions as to
the way in which the information is produced and therefore
could also include statements that should not be considered as
advertising in the sense of the directive on electronic
commerce. [9]
014 Finally, the TVWF
directive, directive 89/552/EC, contains in article 1a,
whereas a specific definition of advertising that is based on
the criterion of payment by the advertiser or similar
consideration, directive 84/550/EEC as amended by directive
84/450 EEC ( misleading advertising directive ) uses the
classic definition of advertising as the making of a
representation in any form in order to promote the supply of
goods or services without mentioning criteria like payment or
similar consideration.
015 An important issue
is whether a web site has to be considered a commercial
communication. A recent decision by the Court of Appeal in
Rennes (France) provides a rule of conduct. It was decided
that a web site on which a bank offered credit solutions
accompanied by examples of financing and a page of advertising
for a credit card had to be considered a commercial
communication. According to the Court of Appeal the internet
site constituted an advertising support, even though visitors
to the site in question had to register first and chose
deliberately to visit the site. According to the Court the
essential criterion of an advertising support is that it can
carry an advertising message, whatever form it takes. As the
site was aimed, not by its very existence but also by its
content, at promoting the commercial activity of the bank, the
attractive presentation of the credit contracts, it was
considered a commercial communication.
[10]
Provisional Conclusion
016 What, in
conclusion, should thus be the scope of advertising rules in
the Information Society? Should it be diverse, like it seems
to be now, adapted to the special circumstances of the medium
or the product and therefore implying a separate concept,
adapted to the on-line world? Or should there be only one
concept, applicable both to an on-line and an off-line
consumer? In answering this question, the specific features of
advertising on the Internet, and other media that will emerge
in the Information Society, must be taken into account on the
one hand, and general principles of advertising law on the
other. The last ones indicate especially - later on we shall
discuss these principles more thorough - the importance of a
clear borderline between advertising on the one hand and
unbiased, independent information on the other. The specific
features of the Internet have blurred this borderline, it is
true, but the same holds true for other media in which
ingenious non-spot advertising methods are constantly
developed and applied.
017 In conclusion the
concept of commercial communications in the electronic
commerce directive is suitable for the on-line world. As the
Court in Rennes has put it: the essential criterion of an
advertising support is that it can carry an advertising
message, whatever form it takes.
[11] This particularly
applies, given the fact that the consumer would not expect
differences in the concept of commercial communications,
dependant on media differences. This expectation could indeed
also serve as a plea for a unified concept of commercial
communications in the secondary law of the European Union.
4. Analysis of the Legal
Framework
018 After having
established the scope of commercial communication we now turn
to the consumer needs in an Information Society environment.
What are the essential needs of such a consumer? In this
domain the following categories of consumer needs will be
looked at:
(a) The need
for correct information about relevant features of products
and services.
(b) The need
for easily accessible information for consumers, applying
search methods that will lead to useful information.
(c) The need
for recognisable information as to its nature: commercial or
originating from independent sources.
(d) The need
for protection against unsolicited and obtrusive commercial
messages (so-called 'spamming').
a. Correct
information about relevant features of products and services.
Misleading advertising and
the provision of correct information
019 The distance
selling directive contains in article 4 a provision to ensure
that the consumer will be properly informed before the
conclusion of any distance contract of information about e.g.
the identity of the supplier, the main characteristics of the
goods and services, the price of the goods and services etc.
020 In terms of
advertising law this field of misleading information is
covered by the directive on misleading and comparative
advertising and by directives concerning specific products or
services.
021 National cases in
various Member States on misleading advertising on the
Internet indicate that a broad concept of misleading
advertising is a perfect tool to attack misleading practices.
Without doubt, the same holds for European law on misleading
advertising. The definition of advertising is so wide that one
could almost speak of a directive on misleading marketing
practices. [12] Even
individual, non-public statements made by the seller in
connection with the conclusion of a contract are covered.
Whilst directives on special products or services do not
exclude the applicability of this general directive, it may be
said that its field of application is really comprehensive and
easy to use as an instrument to suppress misleading commercial
statements of every nature and with respect to any medium.
022 There is a
drawback to this flexible concept of misleading advertising.
In its Green Paper on Commercial Communications, the
Commission regrets this flexibility, because it gives ample
possibilities to the national judges to interpret this concept
differently in different Member States.
[13] In addition, one may
remember that the directive on misleading advertising is a
minimum directive, that does not preclude Member States from
retaining or adopting provisions with a view to ensuring more
extensive protection with regard to misleading advertising.
Taken together, these two elements may indeed create barriers
to the flow of advertising services.
[14] The recent case law of
the European Court of Justice, however, shows some unifying
tendencies: we have already noted the opinion of the Court
about the concept of the consumer. This is not the only factor
from which a certain unifying tendency emanates. Cases like
Pall,
GB-INNO,
Clinique,
Nissan and
Sucrandel [15] provide
us with a balanced interpretation of the concept of misleading
advertising, which should also be normative in pure national
cases. Whereas it is not possible to do without a general
concept of misleading advertising, given the flexibility of
advertising itself, it is recommendable to look for mechanisms
in which the interpretation of the Court in cases of
transborder advertising should also be valid in purely
national cases. One of these mechanisms would be a maximal
harmonisation of the directive on misleading advertising, in
the same way as comparative advertising is treated.
Comparative advertising
and the provision of correct information
023 The definition of
advertising in the context of comparative advertising, being
the same as the one used for misleading advertising, does not
seem to create difficulties in applying the European rules for
comparative advertising on comparative webvertising. The main
problem with comparative advertising on the Internet and
elsewhere, is made up by the link between unfair competition
and comparative advertising. As long as the field of unfair
competition is not harmonised in the Community, even the
effects of maximum harmonisation of comparative advertising
will be hampered by the different interpretations the national
Courts may employ, concerning categories like passing off,
discrediting competitors, free riding, confusion, etc.
[16] In this respect, it
would be advisable that the Commission again takes
preparations for the harmonisation of unfair competition, like
it did at the first draft of a directive on misleading and
unfair advertising. This, however, relates to general problems
of advertising law; nevertheless, harmonisation could also
bring solutions to some specific problems relating to
webvertising, more particularly relating to reliable search
methods on the Internet.
024 For consumers
comparative advertising can be a very useful tool to gather
information about products and services. Art. 7 parras. 4 and
5 of the directive on misleading and comparative advertising
contains exceptions to the rule that comparative advertising
shall be permitted. These exceptions permit Member States to
maintain or introduce certain advertising bans or restrictions
on comparative advertising. More particularly, bans or
limitations on the use of comparisons in the advertising of
professional services may be maintained or introduced by the
Member States. As the Internet is a very suitable medium to
provide detailed and correct information about professional
services - and in fact is already used for that purpose –
which could be relevant for the consumer, it is advisable to
rethink the existing provisions of the directive. One reason
therefor is also the decision of the European Commission in
the EPI case. [17]
Particular problems of
webvertising in the sector of medicines and tobacco
025 Public advertising
for medicinal products that are available on medical
prescription only must be prohibited by the Member States,
according to Art. 3.1 of directive 92/28/EEC . The directive
on advertising and sponsorship of tobacco products bans all
forms of advertising and sponsorship, regardless of its public
nature. In both cases questions may arise as to whether the
holding of a website containing information about tobacco
products or medicinal products in itself is a contravention of
these bans on advertising. The same holds true for medical
claims concerning foodstuffs that are prohibited by Art. 2
parra. 1(b) of the directive on the Labelling, presentation
and advertising of foodstuffs . To avoid different
interpretations of these two bans, it is advisable to have
some guidelines in this respect. (In its Roche case a German
ban on advertising which also covered non-misleading
statements was considered by the Court as an infringement on
the freedom to trade and sell. This non-paternalistic
approach, which already in the GB-INNO case had been used by
the Court, has been repeated in cases like the Mars case and
the Clinique case. It may lead to research into cases in which
for several reasons correct information that could be relevant
for the consumer is nevertheless banned.)
026 Generally,
consumers benefit from actual and relevant information on
subjects such as tobacco and medicine. The information
provided on web sites should in any case be objective and
correct. Especially the health risks involved in web
prescription of drugs and medical advice that is
(automatically) given on the Internet without professional
interventions are substantial. E.g. a patient with a heart
condition was given Viagra after Internet consultation.
[18] Since Viagra has been
linked to the death of heart patients and should not be given
to people taking nitrate drugs for heart diseases this could
have been a vital error. Consumers should be protected from
such health risks. Also in this respect, a sharp borderline
between editorial and commercial communication is eminent (see
below sub c). Apart from that, since health is an eminent
consumer interest, serious consideration has to be given to
the question whether there is a need for public legislation
that regulates medical advice on the internet.
Promotional offers
027 A subject that has
a clear link with existing public law in several Member States
is the legislation with regard to promotional offers for
commercial purposes such as premiums and lotteries. With
regard to on-line promotional offers, only the directive on
electronic commerce contains a provision on the mandatory
information with respect to these offers in commercial
communications (Art. 6c and d). Transparency and information
requirements are required for sales promotion activities such
as rebates, premiums, gifts etc.
028 As a consequence
of the country of origin principle in the directive on
electronic commerce , promotional offers can be provided
trough the Internet into all Member States irrespective
of the legislation of some Member States restricting
promotional competitions, game lotteries etc. This has a
negative impact on the consumer protection standard in those
countries. In this respect some clarification is needed as to
whether this is a desirable consequence.
b. Easily
accessible information for consumers
029 Typical (and
important) for webvertising are search methods that will lead
to useful information. The way in which some advertisers try
to lure consumers in their web by abusing meta-tags, links,
framing and the like, deserves special attention. Easy access
is very important for consumers. Their civil right, the
freedom to gather information, is directly touched upon if
their access to information is blocked or otherwise diverted.
030 Hyperlinks provide
a very effective search method for the consumer on the
Internet. These may even function as a sort of comparative
advertising by the consumer himself. Unfair competition law
and intellectual property law, however, prohibit some linking
methods. Generally speaking:
[19]
(a) Mere hyperlinking is
not considered as an unlawful use of a trademark or a
company name.
(b) A clear expression of
opposition on a competitor's website to hyperlinking may be
legally effective to exclude hyperlinking to that website.
(c) Deep linking, that is
linking while bypassing the competitors home page, could be
prohibited if by deep linking the false impression could be
given that the page which appears belongs to the website of
original website.
(d) As far as framing is
concerned, it is accepted that the owner of a website being
framed, can easily find recognition in a statement of his or
her authorship on the quoted page. This means that framing
in itself will not be readily considered as unfair
competition.
(e) The use of meta tags
could amount to infringements of Trade Mark Law, unless the
use of the trade mark could be considered as lawful
editorial use.
031 It is expected
that, these issues can be addressed under the current unfair
competition law and intellectual property laws. However, they
need constant attention, since they represent an important
consumer need in this field.
c.
Information its nature which is recognizable as regards
032 It is of key
importance that consumers are acquainted with the nature of
information they are confronted with. Is the information
commercial or does it originate from independent sources?
Since the Internet is a convergent medium that unites all
possibilities of all sorts of media such as newspapers, film,
telephone, broadcasting and databases, the borderline between
editorial and commercial communication on web pages is often
blurred. The reliability of the classical media in this
respect is absent on the Internet (see also domain D3).
033 European law
contains, except for television, no specific rules concerning
the borderlines between editorial and commercial
communication. This field for the greatest part is covered by
national and international self-regulation. Although art. 10.1
of the TVWF directive contains the principle that editorial
and commercial communication has to be clearly distinguished,
the application of this principle in Article 11 (the
interruption system) is tailor-made for television and cannot
be used on the Internet.
034 As a general rule,
commercial communication should be recognisable as such. This
principle has been laid down in the directive on electronic
commerce . In Article 6a it is stated that Member States shall
ensure that commercial communication is clearly identified as
such. Also, according to the second paragraph of Article 4 of
the distant selling directive , the supplier of goods and
services is obliged to make clear what the commercial purposes
of the information on his website are.
035 The directive on
misleading and comparative advertising defines misleading
advertising as any advertising which in any way, including its
presentation, deceives or is likely to deceive the persons to
whom it is addressed, thereby making it possible to take
action against forms of surreptitious advertising on the
Internet. Nevertheless, more specific rules should be
considered.
036 The same reasoning
holds for sponsorship. Since on the Internet it is rather
difficult for consumers to establish whether they are dealing
with objective information or information that has a
commercial nature, extra safeguards are needed as to the
identity of a sponsor of a site. On the Internet one can see
more and more companies sponsoring sites. E.g. a producer of
cosmetics can sponsor a site with information for teenagers
and their problems. On this site information about facial
spots can be given and teenagers can unknowingly be lured to
buy the anti-pimple product of the sponsor. In this context,
clear rules are required under which the sponsor is obliged to
identify itself. Under Article 6 b of the directive on
electronic commerce the natural or legal person on whose
behalf a commercial communication is made, has to be clearly
identifiable . So far it is not yet clear whether the
sponsoring of an Internet site has to be considered commercial
communication within the meaning of the directive on
electronic commerce.
037 In this context,
there is another issue that is critical: how does article five
of the electronic commerce directive apply to
telecommunications? At present there are applications where an
SMS message is transmitted to a mobile phone when entering a
certain area. How should this be seen? Is this message
received in the context of a pre-contractual arrangement? One
could ask whether there is not a need for a contract between
the consumer and the provider of the service. This also raises
the question of who is the counterparty? The service provider
or the person advertising? Obviously, given the expected boom
in telecom applications (WAP etc.), the relation between
telecoms and advertising will become increasingly important
and may require reassessment.
038 In conclusion,
although the principle that consumers have to be informed
about the nature of information is expressed in the relevant
directives, some clarification is needed with regard to the
way in which companies have to distinguish commercial
information from objective information on the Internet, as is
already done with regard to TV commercials in the TVWF
directive.
Children
039 Since children are
a very vulnerable group of consumers in the analogue world,
the TVWF directive contains a specific provision for children
in Article 16. The underlying principle of this provision is
that TV commercials may not cause moral or physical damage to
children. To this end, TV advertisements may not incite
children to buy products or to incite their parents to buy the
products and may not show children in dangerous situations
etc.
040 Since Article 16
TVWF directive is formulated in a medium-dependent way it can
only be directly applied to TV commercials. Therefore it is
not Information Society proof per se and needs clarification.
If this provision would be reformulated to include all
commercial communications, it could be a very useful point of
departure for the regulation of on-line advertisements
[20] . At this moment also
some effort is being made to implement self-regulation among
advertisers throughout the EU
[21] .
d.
Unsolicited and obtrusive commercial messages
041 Unsolicited
commercial e-mail also known as spamming
[22] , is a growing problem
on the Internet. By sending spam mail the advertisers move the
advertising costs to the consumer who spends (valuable) time
reading the e-mails. The problem of the legality of spam mails
has not yet been solved. In article 10 of the directive on
distance selling the prior consent of the consumer is required
with regard to the use of automatic calling systems without
human intervention and the use of facsimile machines for
distance communication (opt in). With regard to other means of
individual distance communication, such as spam mails, the
Member Stated will have to ensure that these may be used only
where there is no clear objection from the consumer (opt out).
It should be noted that this directive only refers to distance
selling. Not all spam mail will be sent for the purpose of
distance selling.
042 In Article 12 of
the telecom-privacy directive the use of automatic calling
systems without human intervention or facsimile for the
purpose of direct marketing may only be allowed in respect of
subscribers who have given their prior consent (opt in). For
means other than via automatic calling or facsimile the
telecom-privacy directive leaves the Member States a choice
between an opt out or an opt in system. Until now, it is not
totally clear whether spam mail can be squeezed in under this
last category. The Commission has taken an initiative to
clarify this situation in its Proposal for a Directive
concerning the processing of personal data and the protection
of privacy that is intended to replace the current Directive
97/66/EC. In article 13 of this proposal, electronic mail for
direct marketing purposes other than at the request of a
subscriber, will be covered by the same type of protection
that exists for automatic calling systems and taxes. The
Commission thus proposes a harmonised opt in approach that is
technology neutral (COM (2000) 385).
043 The directive on
electronic commerce has a special provision on unsolicited
commercial communications by e-mail in article 7. This
provision does not univocally solve the problem of unsolicited
e-mail. It leaves both possibilities of opt out and opt in to
the discretion of the Member States. In any case the spam mail
should be clearly and unambiguously identifiable as such at
the same time defining a specific obligation for the Member
States to take measures in the field of the so-called Robinson
lists or opt out registers. Service providers are required to
check regularly these registers and to respect the consumers
that have registered their preference not to receive spam
mail. Under Article 13 of the draft directive concerning the
processing of personal data and the protection of privacy in
the electronic communications sector , unsolicited
communications (spamming) will only be allowed in respect of
subscribers who have given their prior consent.
044 In conclusion, the
present rules on spamming still need some clarification to be
Information Society proof. Also for harmonisation purposes, a
choice should be made between an opt out and an opt in system
for spam mails. An opt in system seems most favourable for
consumers whereas an opt out system allows advertisers to send
spam mail if the consumer does not (clearly) object. The
recent Commission proposal (COM (2000) 385) embraces this
principle.
5. Conclusions
Information Society proof
rules
045 The scope of
commercial communication as defined in the electronic commerce
directive is Information Society proof. The distance selling
directive, and the directive on misleading and comparative
advertising contain provisions to ensure that the consumer
will be correctly informed about relevant features of products
and services and can also be titled as Information Society
proof. In respect of access to information and on-line search
methods (hyperlinking en meta tagging) for consumers one can
rely on the existing regulatory network, being unfair
competition law and intellectual property laws.
Rules whereby
clarification is needed
046 Since the
directive on misleading and comparative advertising allows for
an exception for the comparative advertising of professional
services and the Internet is a very suitable medium to provide
detailed and correct information about professional services
some clarification is needed as to whether the EU wishes to
maintain that exception on-line. Furthermore, The Information
Society consumer will expect information to be recognisable as
regards its nature: commercial or originating from independent
sources. Although the general rule that commercial
communication should be recognisable is as such laid down in
the directive on electronic commerce and the distance selling
directive clarification is needed about the way in which
companies have to distinguish commercial information from
objective information on the Internet. Especially in respect
of information with regard to prescribed medication it is
eminent that companies draw a clear borderline between
editorial information and commercial communication. Also with
regard to vulnerable consumer groups such as children it is of
the utmost importance that commercial communication is clearly
identifiable as such for this target group. Also, the rules on
spamming still need some clarification: the problem of the
legality of spam mails is not yet solved. The Commission has
taken recent action to clarify this by proposing an opt in
system for spam mail in its Proposal for a Directive
concerning the processing of personal data and the protection
of privacy that is intended to replace the current Directive
97/66/EC. Finally, as a consequence of the country of origin
principle in the directive on electronic commerce promotional
offers can be provided through the Internet into all
Member States irrespective of the legislation of some Member
States restricting promotional offers etc. Some clarification
is needed as to whether this is the sesired consequence.
Non-Information Society
proof rules
047 None.
Gaps in EU legislation
048 The health risks
involved in web prescription of drugs and medical advice that
is (automatically) given on the Internet without professional
interventions are substantial. Since health is an eminent
consumer interest, serious consideration has to be given to
the question whether there is a need for public legislation
that regulates medical advice on the Internet. Furthermore, no
regulation exists with regard to on-line commercial
communications directed to children. Since article 16 TVWF
directive is formulated in a medium-dependent way it can only
be directly applied to TV commercials. If this provision would
be reformulated to include all commercial communications
directed at children, it could be a very useful point of
departure for regulating for on-line advertisements.
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