Ian :
Section 11 provides for a right to be exercised but does not in my view
provide a default position for individuals data to not be used for marketing
(opt in). If this right is exercised it requires the action by a data
controller as in point c) of my analysis.
To my mind individuals have to take an action to exercise their right to not
be subject to marketing (opt out), by contacting data controllers
individually or potentially via use of the preference services.
Schedule 2 Section 6 (1) is simply one of the required processing conditions
for the data controller. If an individual has not exercised their right as
per the Acts section 11 then the test of predjudice within this section
could well fail.
As you are aware processing conditions and fairness can be seen as distinct
elements in principle 1 (coming together where consent is the argued
processing condition). Of course if an individual writes to a data
controller to exercise their section 11 right and this is ignored then the
fairness test is likely to be adjudged as being breached by a controller.
Therefore a breach of principle 1.
During the lobby processes on this Act section 6 (1) was that which the DMA
argued as supporting list purchase processes. I have had several
discussions on this with contacts at CBI, ABI and DMA as well as persons
from both the Home Office and Commsioners Office.
Personally I will be thankful when uncertainties regards interpretation are
removed via case law, it would make my job easier. Unfortunately I cannot
see this occuring for a while particularly in the area of marketing, given
the likely compensation figures appear low should someone sucessfully prove
damage and distress.
Regards
David Wyatt
----- Original Message -----
From: <[log in to unmask]>
To: <[log in to unmask]>
Sent: Sunday, March 19, 2000 6:38 PM
Subject: Re: Direct Mktg. and Lists
> Dave
>
> I disagree with your analysis on one point - albeit a major one.
>
> Under the DPA98 everone has an undeniable right to NOT have their data
> processed for marketing purposes.
>
> Where the data were obtained by one data controller for a particular
purpose,
> without the consent of the individual to pass it to others for marketing,
the
> recipient controller has to declare him/herself to the data subject and
seek
> consent of the data subject for marketing.
>
> Using 6(1) of schedule 2 to justify the lawfulness of processing is, to my
> view, not sufficient in that it does infringe the rights of the data
subject
> to not have the data processed for marketing purposes without consent.
>
> Ian
>
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
|