Union’s legal framework has been challenged, as was the case of the transposition of
the opt-in system in the Czech Republic.
65
The gap that divides the European Union Member States’ legal systems and the
United States’ legal system is rather evident in respect of this first set of statutory
provisions.
Contrasting with the increasing consumer protection concerns in the European
Union, the United States of America has no federal legislation that grants a private
right of action to consumers based on unsolicited commercial communications by
electronic mail. Although there is a federal law that applies to all commercial
emails
66 and gives their recipients the right to prohibit marketers from continuing
to send commercial communications by electronic mail, through an opt-out system,
this law is primarily enforced by the FTC. Instead of setting up clear rules for
companies on how personal data should be processed, the FTC has focused mainly
in raising awareness about the issues that companies should consider when
collecting data.
67 At the state level, the small number of laws that regulate electronic
marketing has a very narrow scope and is applied to very specific sectors of activity.
It is noteworthy that the other legal systems comprised in the scope of this study
that have legal provisions on this particular topic bear a greater resemblance to that
of the European Union,
68 which widens the gap between the United States and other
parts of the world. This can be explained by several factors, including those legal
systems’ cultural or geographical proximity with the European Union, their historical tradition of protecting personality rights, or, more interestingly, the convenience
to adapt themselves to the most demanding legislation in order to provide legal
certainty to international transactions. Switzerland has an opt-in-system.
69 Japan has
two laws that regulate unsolicited commercial communications by electronic means,
both of them setting an opt-in system.
70 The recent general data protection law
enacted in South Africa, although not yet fully in force, provides for an opt-in
system, which will repeal the existing opt-out system currently laid down by specific
legislation on electronic communications and transactions.
71
In the United States, the most important federal legislation applicable to services
provided at a distance and designed to protect personal data is the Fair and Accurate
Credit Transactions Act (hereinafter FACTA).
72 In the specific context of online
65 See the Czech National Report, Sect. 2.1.
66 Controlling the Assault of Non-Solicited Pornography and Marketing of 2003 (CAN-SPAM Act).
67 See the United States of America’s National Report, Sect. 2.2.
68 See the South African National Report, Sect. 4.1.2, the Swiss National Report, Sect. 9, the
Japanese National Report, Sect. 3.1.1, the Canadian National Report, Sect. 2.3 and the Singaporean
Report, Sect. 3.7.1. Other non-European countries don’t have any relevant provisions on this
subject (see the Cape Verdean National Report, Sect. 3.1, according to which Cape Verde’ provisions on this topic concern exclusively the electronic communications sector, and the Brazilian
National Report, Sect. 3.1).
69 See the Swiss National Report, Sect. 3.
70 See the Japanese National Report, Sect. 3.1.1.
71 See the South African National Report, Sect. 4.1.2.
72 See the United States of America’s National Report, Sect. 2.1.
Data Protection in the Internet: General Report
15
the opt-in system in the Czech Republic.
65
The gap that divides the European Union Member States’ legal systems and the
United States’ legal system is rather evident in respect of this first set of statutory
provisions.
Contrasting with the increasing consumer protection concerns in the European
Union, the United States of America has no federal legislation that grants a private
right of action to consumers based on unsolicited commercial communications by
electronic mail. Although there is a federal law that applies to all commercial
emails
66 and gives their recipients the right to prohibit marketers from continuing
to send commercial communications by electronic mail, through an opt-out system,
this law is primarily enforced by the FTC. Instead of setting up clear rules for
companies on how personal data should be processed, the FTC has focused mainly
in raising awareness about the issues that companies should consider when
collecting data.
67 At the state level, the small number of laws that regulate electronic
marketing has a very narrow scope and is applied to very specific sectors of activity.
It is noteworthy that the other legal systems comprised in the scope of this study
that have legal provisions on this particular topic bear a greater resemblance to that
of the European Union,
68 which widens the gap between the United States and other
parts of the world. This can be explained by several factors, including those legal
systems’ cultural or geographical proximity with the European Union, their historical tradition of protecting personality rights, or, more interestingly, the convenience
to adapt themselves to the most demanding legislation in order to provide legal
certainty to international transactions. Switzerland has an opt-in-system.
69 Japan has
two laws that regulate unsolicited commercial communications by electronic means,
both of them setting an opt-in system.
70 The recent general data protection law
enacted in South Africa, although not yet fully in force, provides for an opt-in
system, which will repeal the existing opt-out system currently laid down by specific
legislation on electronic communications and transactions.
71
In the United States, the most important federal legislation applicable to services
provided at a distance and designed to protect personal data is the Fair and Accurate
Credit Transactions Act (hereinafter FACTA).
72 In the specific context of online
65 See the Czech National Report, Sect. 2.1.
66 Controlling the Assault of Non-Solicited Pornography and Marketing of 2003 (CAN-SPAM Act).
67 See the United States of America’s National Report, Sect. 2.2.
68 See the South African National Report, Sect. 4.1.2, the Swiss National Report, Sect. 9, the
Japanese National Report, Sect. 3.1.1, the Canadian National Report, Sect. 2.3 and the Singaporean
Report, Sect. 3.7.1. Other non-European countries don’t have any relevant provisions on this
subject (see the Cape Verdean National Report, Sect. 3.1, according to which Cape Verde’ provisions on this topic concern exclusively the electronic communications sector, and the Brazilian
National Report, Sect. 3.1).
69 See the Swiss National Report, Sect. 3.
70 See the Japanese National Report, Sect. 3.1.1.
71 See the South African National Report, Sect. 4.1.2.
72 See the United States of America’s National Report, Sect. 2.1.
Data Protection in the Internet: General Report
15