UCE, spam, and contract law

Currently (June 2004), UK law allows the sending of business-to-business e-mail messages, even if they are unsolicited, if the sender conforms to certain guidelines. Therefore, you can send an unsolicited commercial e-mail message (UCE) to a potential customer without being accused of sending spam, can't you? Unfortunately, no, as this article explains.

Overview of the UCE problem

A few months ago, Mike Unwalla from TechScribe sent an e-mail message to someone whom he had contacted previously by letter. The e-mail message conformed to the DTI guidelines for UCE.

The recipient did not appreciate our message and complained to SpamCop (www.spamcop.net). SpamCop forwarded (automatically) the complaint to Global Crossing, which is the upstream supplier to TechScribe's ISP.

TechScribe's ISP forwarded the complaint to TechScribe, with instructions from Global Crossing which asked us to stop sending unsolicited e-mail.

Mike Unwalla contacted SpamCop to point out that the original e-mail message conformed to UK guidelines for commercial e-mail, and that therefore, the complaint was unjustified.

SpamCop's reply showed that although the legislation allows UCE, the contract with the ISP prohibited sending it.

What the regulations say

The DTI guidelines, 'Complying with the E-Commerce Regulations 2002', page 11, state in part:

Commercial communications

Any form of electronic communication designed to promote your goods, services or image, such as an e-mail advertising your goods or services, must:

If you send unsolicited commercial communications by e-mail (e.g. an e-mail advertising your goods or services which is sent to a recipient who has not requested it) you must make sure that recipients are able to identify them as such as soon as they receive them.

SpamCop's reply

Whether or not a complaint about UCE is valid or not is up to your service provider to decide. Spam is not about laws as the Internet is global, and no one country's or region's laws can be forced upon another. Rather it is contract law that is in effect here.

No doubt your service agreement with your service provider prohibits the sending of unsolicited mail. I know their provider, Global Crossing prohibits the sending of UCE, as does RIPE [editorial note: the FAQ page on the RIPE website states that RIPE cannot prohibit the sending of UCE, because it is not an ISP]. Upstream agreements are in place and enforceable on downstream customers and their customers.

We do not review mail that is sent through our service, just as your provider doesn't check your mail. The complaint received by your provider was an email sent by our user through our service. Our user was the one who determined what they received was unsolicited.

What can you do?

Of course, within the constraints of UK and EU law, people in business want to send e-mail messages to potential customers. Even if your ISP agrees that there is no problem with the e-mail messages that you send, your ISP is still bound by the upstream agreements, and has to investigate every complaint.

Are there alternative suppliers that allow the sending of UCE? As far as we know at TechScribe, no. For example:

Therefore, although UCE is permitted in UK law, if you send it, you are probably breaking the terms of your contract with your ISP. That is not a problem… until someone complains.

This article first appeared as 'A cautionary tale' in City Business Magazine June/July 2004.

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