Dear Roland,
Actually, on further thought, I'm not sure spammers will
automatically breach the DPA 1998 unless they have failed to notify
the OIC, and they fail to comply with the right of the data subject
under s.11 to demand to cease receiving direct marketing. To use
personal data that is not sensitive personal data requires a Schedule 2
condition - in this case it is argable that:
"6. - (1) The processing is necessary for the purposes of legitimate
interests pursued by the data controller or by the third party or
parties to whom the data are disclosed, except where the processing is
unwarranted in any particular case by reason of prejudice to the rights
and freedoms or legitimate interests of the data subject."
provides the condition, subject to the right of the individual to be
ask to be removed from a list under s.11. The fact that e-mail is
unsolicited is not in and of itself evidence of prejudice.
As a result spammers who have notified the OIC of their intention to
process e-mail addresses can legitimately send spam to me unless they
are requested by me (or it is indicated by my membership of some
arrangement such as MPS) not to do so. Given that the DPA 1998 does not
therefore appear to bar spam, the failure of the Distance Selling
Directive, and its relevant UK regulations to address the matter is more
telling, and the importance of the new Telecommunications Data
Protection Directive with its outright ban on spam clearer.
Andrew
> Yes it is!! By definition SPAM has to be unsolicited, and therefore
> your
> email address [which is personal data] has been both acquired and
> used
> in contravention to the DPA.
>
> What's more, SPAM is illegal under the Distance Selling Directive,
> and
> its relevant UK regulations [1], we don't have to wait for the newer
> CDPD to arrive.
>
> [1] Which are silent about SPAM only because the DPA *already* made
> it
> illegal, so no new law was required.
Andrew Charlesworth
Senior Research Fellow in IT and Law
Director, Centre for IT and Law
Department of Law/Department of Computer
Science
University of Bristol
Wills Memorial Building
Queens Road
Bristol BS8 1RJ
-----------------------------------------------------
This mail sent through SilkyMail v1.1.7
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at : -
www.jiscmail.ac.uk/user-manual/summary-user-commands.htm
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
|