Unsolicited Communication in Social Media

This article discusses whether commercial communication in social media is covered by the European opt in-model concerning unsolicited electronic mail for direct marketing purposes found in the directive on privacy and electronic communications (2002/58). It is concluded that messages in social media – in contrast to news feeds and advertisements – may be characterised as electronic mail. However, the EU provisions on unsolicited electronic mail is found in the regulatory framework for telecommunication which as a starting point does not regulate web-based content such as social media services. The ban on unsolicited electronic mail does not apply to messaging systems in social media unless the system gives access to sending traditional e-mail. Until 12
June 2013, Member States could – in national law – uphold a broader definition of electronic mail in the light of the minimum harmonisation found in the distance selling directive (1997/7). Now, the use of electronic mail for direct marketing purposes in social media must be assessed in accordance with the full harmonisation in the unfair commercial practices directive (2005/29). This directive does not contain a ban on »unsolicited« but »unwanted« solicitations by e-mail and other remote media – i.e. an opt-out solution. The development in platforms such as Facebook shows that such social media services are also used by businesses to communicate and interact with their »fans«. This article discusses the application of the European spam-provisions in the context of
social media. In that vein it is important to understand both the definition of electronic mail and the scope of application of the regulatory framework for telecommunication in which the ban is found.
The Nordic Consumer Ombudsmen approached EU Commissioner John Dalli on
3 May 2012 with a view to encourage discussions on whether the defi nition of electronic mail set out in the directive on privacy and electronic communications1 is up-to-date. The letter was sent in connection to the publishing of a common Nordic position paper on marketing in social media. The preceding discussions among the consumer ombudsmen questioned inter alia whether unsolicited commercial communications sent to users’ news feeds should be considered electronic mail or other un-solicited communications for the purposes of direct marketing. This and other related questions are dealt with in this article.