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e-Privacy: our quick fix to help nonprofits and protect consent

The ePrivacy Regulation could potentially make communications better by setting a firm standard on how online tools can and cannot be used in profiling and surveilling individuals. We became directly interested in the proposal for a regulation when we realised that the proposed rules on how our chapters and affiliates can communicate with their supporters are ambiguous. Here is the breakdown of the problems and ways out.

How it works now

The Regulation concerning the respect for private life and the protection of personal data in electronic communications (a full name of a Regulation on Privacy and Electronic Communications, or ePrivacy Regulation) is now subject to trilogue negotiations. We specifically look into provisions on the scope of direct marketing. As much as we don’t “market” any services or products for sale to individuals, we all want to keep in touch with our supporters. According to the ePrivacy proposal such communication falls under the definition of direct marketing. This concerns organisations in our movement that contact individuals to solicit donations or to encourage them to volunteer in various ways in support of our movement’s mission. 

Currently in several Member States, based on the ePrivacy Directive and subsequent national laws, nonprofits have the right to contact individuals who they were in touch with before, on an opt-out basis. It means that while they present a new initiative or a fundraising campaign, they need to provide the contacted people with a possibility to refuse receiving such information in the future. 

We want to maintain this opportunity, if the provisions of the ePrivacy Regulation include communication by the nonprofits be considered direct marketing, as it seems to be the case now. After all, Wikimedia chapters around Europe need to be in touch with their supporters in alignment with privacy protections. 

“It is evident from the European Commission’s proposal that the legislator meant to include nonprofits in the opportunity that they already enjoy in many European jurisdictions.”

What is the problem?

In the draft, this framework is provided for commercial entities that will be able to continue to use these electronic contact details for direct marketing of its own similar products or services only if customers are clearly and distinctly given the opportunity to object. Concretely, the proposal states that natural or legal persons may use electronic communications services for the purposes of sending direct marketing communications to end-users who are natural persons that have given their consent [art. 16(1)]. It also provides that the sender may use these electronic contact details for direct marketing of its own similar products or services only if customers are clearly and distinctly given the opportunity to object [art. 16(2)]. 

From the reading of these provisions it seems that the legislator may have forgotten the non-profit activities such as collecting donations that are neither tied to information about products nor received in exchange for services. Why shouldn’t the nonprofits enjoy equal rights?

Looking further into the text, the proposed recital 32 states that direct marketing refers to any form of advertising, and in addition to the offering of products and services for commercial purposes it also applies to messages sent by non-profit organisations to support the purposes of the organisation. However, the permission to use e-mail contact details as outlined in art. 16(2) itself is only further elaborated upon in recital 33 which directly refers to “existing customer relationship” and “offering of similar products or services” (emphases added). 

Recital against a recital

As we see from recitals 32 and 33, the text is ambiguous. There is a danger that the permission will not be interpreted as applying to messages sent by non-profit organisations to support the purposes of the organisation – they don’t have customers nor do they offer products or services in the commercial sense. 

The current wording results in elevated risk of a court interpretation. If a nonprofit acts on the understanding based on recital 32, somebody may challenge that decision based on the narrower scope of recital 33. This would put a considerable burden on both the nonprofits in member states and those who operate on an EU-wide scale. 

A simple clarification

The solution is to bring parity between communications on commercial relationships and those undertaken by non-profit organisations to support the purposes of the organisation. It can be done by introducing nonprofits into recital 33. Even better, they should also be mentioned in article 16(2).

It is evident from the European Commission’s proposal that the legislator meant to include nonprofits in the opportunity that they already enjoy in many European jurisdictions. Here we have a clear case where an intervention is easy and in alignment with the objectives of all parties in the trilogues. We are asking Members of the European Parliament and Members States to introduce this helpful tweak that is in practice a quick fix.