Ian:

The fact that others have similar views on interpretation is hardly
suprising. The fact they are within marketing organisations is also no
suprise. They were a very strong government lobby group.

My only interest is to interpret the Act correctly protecting my employer by
ensuring correct rights are afforded to data subjects. I am fully aware of
the arguments supporting opt in benefits and their merits. The fact is, that
the legislation introduced does not require opt in.  This was not due to US
influences, but UK lobbying.  All parties had opportunities to put their
views prior to and during the drafting processes by the Home Office. The UK
Act is the result.   My job is to provide professional advice to my employer
to assist their compliance.  I participate in providing views on mailbase in
the same manner.  Enforcement action is real, cases may go to court, section
61 has to be taken account of.

Whilst the DMA arguably has a vested interest they also act in a
professional manner and issue many codes of practice to their members. The
DMA are well aware that if marketing organisations fail to adequately self
regulate then positions can change. This was most clearly indicated within
government comments on the Telecoms directive. Marketing if applied
correctly can bring consumer benefits. e.g. Product discounts. Consumers are
quite an intelligent bunch and can make choices. Opt out lists exist and can
be used. failures can be pursued. Persistent failures give rise to real riks
of enforcement action and impacts of this can be severe.  Of course
marketing does provide benefits to organisations and in many cases its
shareholders. Failure to apply legislation also brings risks, any prudent
organisation would minimise this.

I simply attempt to keep to the correct interpretations, any other view
would not protect my employer.  I stand by my view that obtaining consent to
market is not a requirement of the new Act, simply one of the possible
processing conditions.

Cheers

David Wyatt

----- Original Message -----
From: <[log in to unmask]>
To: <[log in to unmask]>
Cc: <[log in to unmask]>
Sent: Thursday, March 23, 2000 9:00 AM
Subject: Re: Direct Mktg. and Lists


> Dave
>
> I'm sorry Dave but when your analysis is supported by Charles Prescott
from
> "the States", it supports my analysis that you are taking the "market-led"
> approached so favored (sic) by our colleagues across the water.
>
> Also, consider the advantages of the alternative method: If you are only
> sending mailings to those who have indicated that they want to receive
them,
> your list is much more efficient and likely to yield a higher percentage
of
> interested returns.  If you are not sending junk mail to those who don't
want
> it, you are also reducing the amount of paper produced - and just chucked
in
> the bin.  If the product you are selling is so good, people will want to
know
> all about it.
>
> I know that marketing people will not like this new Act, they didn't like
the
> old one.  You have to remember that not only is customer "King", customer
is
> also "data subject" under the terms of this Act and it is the data subject
> who is protected by this law - it has not been designed to protect the
> current practices, nor the company, nor the profits of the company.
>
> My advice to those organisations who may be tempted to sell lists of names
> and addresses is this:
>
> 1)  First of all, ensure you have the positive consent of the data subject
to
> sell their details to other companies or organisations.  If possible,
> actually name the companies that are likely to buy the list.
>
> 2)  If you suspect that any particular company buying the list is going to
> use the list for marketing purposes without giving the individual the
rights
> you would want for yourself (i.e. to know who is processing, for what
> purpose, and to ask for your consent to continue - preferably at no cost
to
> yourself) then don't sell it to them.
>
> 3)  If you decide to sell the list and your own details are on it and you
> don't wish to receive junk mail from these companies, remove your name and
> address first.  (Then apply that same right to all the other data subjects
> who have not indicated that they wish their details to be passed on).
>
> "Hope this helps"
>
> Ian Buckland
> MD
> Keep IT Legal Ltd
>



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