At 13:53 5/06/03 -0600, Richard Johnson wrote:
I believe there is no way to safely manage "implied consent" for BE
streams. Consent for such needs to be explicit.
I would go further and say that rather than logistical difficulties, there
is never implied consent for bulk email. The reason for this is that it's
simply not necessary to have implied consent for bulk email in the cases
where it is suggested that implied consent might exist. In those cases,
there is already a 1:1 communication stream underway. This means that the
potential sender has an opportunity to seek explicit consent. Failure to do
so is done out of either (a) laziness; or (b) a failure to care about
whether there really is consent. In fact if you're assuming consent in such
cases, you know that as part of your operation you will be hitting, people
who do not consider there to be implicit consent.
As I have mentioned before, consent is a legal concept, and being a legal
concept there are some broad guidelines for how to determine when consent
it implied. If you're interested in this in more detail, I would recommend:
Young P, "The Law of Consent", Law Book Co, Sydney, 1986. Although this
book is not exhaustive of the concept, it's the closest thing I've found to
a canonical discussion of the issues of consent.
One survey in 2000 (<http://businessweek.com/2000/00_12/b3673010.htm>, see
under heading "ONLINE BUYERS DREAD JUNK MAIL") pegged the number of users
who do not regard a pre-existing relationship as giving consent to
marketing material at 78%. The figures have increased over time, so the
position that pre-existing relationships mean implied consent for bulk
email reflects neither a practical necessity nor the views of the people
who are receiving the bulk email (and it is their views that matter for the
question of the existence of implied consent, not the desires of the vendors).
Even if the figures were turned around, you couldn't really claim implied
consent. Implied consent would only arise where no reasonable person would
regard the communication as not requiring implied consent. You'd have to
either get the numbers of people who object to this practice down to
something under 5%, or demonstrate that there is something in the
circumstances that makes their view unreasonable. The fact that the
contrary behaviour is normal practice of vendors does not make the view
unreasonable.
--
Troy Rollo Chairman, CAUBE.AU
asrg(_at_)troy(_dot_)rollo(_dot_)name Executive Director,
iCAUCE
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