UCE, spam and contract law
Currently (June 2004), UK law allows the sending of business-to-business emails, even if they are unsolicited, provided that the sender conforms to certain guidelines. So, you can send an unsolicited commercial email (UCE) to a potential client without being accused of sending spam, right? Unfortunately, no, as this article explains.
Overview of the UCE issue
A few months ago, Mike Unwalla from TechScribe sent an email to someone whom he'd contacted previously by letter. The email conformed to the DTI guidelines for UCE.
Unfortunately for us, the recipient didn't appreciate our message and complained to SpamCop (www.spamcop.net). SpamCop forwarded (automatically) the complaint to Global Crossing (www.gblx.net), which is the upstream provider to TechScribe's ISP.
TechScribe's ISP forwarded the complaint to TechScribe, with instructions from Global Crossing which asked us to desist from sending unsolicited email.
Mike Unwalla contacted SpamCop to point out that the original email conformed to UK guidelines for commercial emails, and that therefore, the complaint was unjustified.
SpamCop's reply showed that even though the legislation might allow UCE, the contract with the ISP prohibited sending it.
What the regulations say
The DTI guidelines (www.dti.gov.uk/cii/ecommerce/europeanpolicy/
ecommerce_directive.shtml#the_regs), '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:
- be clearly identifiable as a commercial communication
- clearly identify the person and/or organisation on whose behalf it is sent
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 ensure 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 web site 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?
Well, of course, within the constraints of UK and EU law, people in business want to send emails to potential clients. Even if your ISP agrees that there's no problem with the emails you send out, 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:
- Easily (http://easily.co.uk). We asked about obtaining an account that allows the sending of UCE. They replied, "We don't, nor are we making any plans to allow this type of practice to be done via our email servers."
- Freeserve (now Wanadoo, www.wanadoo.co.uk). It's not allowed "to spam or send or procure the sending of any unsolicited advertising or promotional material."
- BT (www.bt.com). For BT Business 500 and Business PLUS, you are not allowed "to spam or to send or provide unsolicited advertising or promotional material."
So, there you have it. Even though UCE is allowed in UK law, if you send it, you are probably breaking the terms of your contract with your ISP. That's not an issue… until someone complains.
This article originally appeared (modified) as 'A cautionary tale' in City Business Magazine (www.city-business.com) June/July 2004 issue.
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