Fresh off the heels of the GDPR, and largely under its shadow, EU legislators are in the process of re-drafting the ePrivacy Regulation. Amongst other things, the Regulation is designed to complement the GDPR; containing rules that govern the use of personal data in the context of electronic communications.
One rule is that the ePrivacy Regulation regulates the sending of direct marketing emails. Generally, consent must be obtained before emails can be sent. However, the Regulation distinguishes between the activities of those in the commercial sector and those in the charitable and not-for-profit sector when it comes to electronic marketing of goods and services.
Email is an essential part of the outreach charities and not-for-profits do in helping individuals, as it provides a means through which they can deliver support and care to persons in need. It is also a vitally important source when looking to raise awareness and/or funds when it comes to supporting their causes.
Currently commercial organizations can benefit from a “soft-opt-in” rule, allowing them to market to existing customers that have engaged with them for a good or service. They are able to rely on this “consent” until that client opts out of receiving such marketing material.
In the current draft Regulation, charities and not-for-profits, whether they have an existing relationship or not with a donor/subscriber, cannot email those donors/subscribers unless a specific consent to receive these emails has been obtained from them. This sets a much higher bar to contact these parties than the commercial sector is subject to.
Such restrictions may also affect the speed with which charities and not for profits can react during a crisis. For example, the positive impact charities and not-for-profits are able to have on a disaster relief situation – where speed of action is so important in making a difference – will be severely hampered if they either have to wait for customers to make the positive move to opt-in to the charity contacting them, or worse yet, forget to opt-in at all.
It is disappointing to see that the prospective ePrivacy Regulation will hamper socially beneficial activities whilst permitting equivalent commercial activities.
The chilling impact the Regulation has on the rights to free speech also appears to have been overlooked. The Regulation fails to make a distinction between awareness raising materials from marketing activities more generally. Promoting the aims of organisations, whether they are charitable, social, community based or religious is not the same as receiving promotional emails from a commercial organisation. In fact, one would imagine the latter being subject to the restrictions whilst the former being subjected to less stringent requirements.
With this in mind, it must surely be an unintentional oversight that lawmakers have placed charitable and social/not-for-profit services at such a disadvantage to their commercial counterparts.
Digital services are the lifeblood of modern communication, is it any wonder therefore that the American Chamber of Commerce to the EU has labelled the Regulation as “A roadblock to innovation“?
A renewed push to get the wording of the Regulation completed means it is time to act to bring a voice for charities and not-for-profits to the EU negotiating table and make a case for the inclusion of language that places these sectors on an equal footing to their commercial counterparts.
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