There are a number of interesting aspects to the new regulations that
are yet to be tested albeit if one looks at the CAP code that all
marketers must follow in the UK (especially if you are a member of the
DMA) the rules are explicit in every way.
1. The questions I would ask are:
a. Is a communication unsolicited when it comes from a third party
by email and that company has obtained the email addresses from a list
bought from a broker or list owner where the original email address was
gathered by the list owner previously by an opt-out? e.g If you do not
wish to receive emails (or SMS) from selected third parties please tick
here.
b. Where a company sends a monthly newsletter by email and they
have gathered the email address by valid opt-out (soft opt-in) and the
newsletter contains offers by other companies either in banner form or
text or hyperlink, does this contravene new regulations given that it is
not 'similar products from the same company that collected the email
address from the data subject in the first place'
c. If a company decides to only host emails (or SMS) from third
parties (assuming they cannot now sell a list that they have gathered on
opt-out) e.g. we have teamed up with XYZ Ltd to bring you a fabulous
offer, is this acceptable as long as fair processing (reasonable steps
to advise) is given despite the fact that it isn't similar products?
A few to chew over
Cheers
Jonathan
Jonathan Silverman MCIM
gsa (get sound advice)
generating growth
12 St Lawrence Way
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St Albans, Herts, AL2 3XN
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-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Ian Dean
Sent: 18 September 2003 07:56
To: [log in to unmask]
Subject: Re: Privacy and Electronic Communicatio
Before acting on this e-mail or opening any attachment, you are advised
to read the disclaimer at the end of this mail.
My understanding is as follows:
If you are the data controller and collect the emil addresses direct
from your
customers and have given them the opportunity to opt out of marketing
then so
long as the customers have not exersised this option marketing can
continue by
whatever means, post email etc
If you collect the email addresses from anyone other than direct from
the
customer e.g. buying them in, then you must first obtain consent from
the
customer in order to market them using these bought in email addresses.
How you
obtain this consent is the conundrum?
Regards
Ian G Dean
____________________Reply Separator____________________
Subject: Re: [data-protection] Privacy and Electronic Communications
Author: davidwyatt <[log in to unmask]>
Date: 17/09/2003 22:13
An observation
I haven't checked detail before this post so feel free to shoot this
comment
down . I recall that the opt-in requirement on electronic communication
is
not absolute and there are some qualification elements attached. e.g.
where
there is an existing relationship.
David Wyatt
----- Original Message -----
From: "Steve McCain" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, September 17, 2003 4:24 PM
Subject: Re: [data-protection] Privacy and Electronic Communications
Directive
> You are still allowed to imply consent from a non-response for
marketing
> material delivered
> by post but not if it is delivered electronically. The new directive
covers
> electronic delivery
> so marketing by fax, email, SMS text messages etc needs explicit
opt-in
> consent.
>
>
> At 16:14 17/09/2003 +0100, you wrote:
> >You cannot imply consent from a non-response. You must assume that
the
data
> >subject does not want to receive communications.
> >
> >-----Original Message-----
> >From: Sukhvinder Hayer [mailto:[log in to unmask]]
> >Sent: 17 September 2003 15:54
> >To: [log in to unmask]
> >Subject: Re: [data-protection] Privacy and Electronic Communications
> >Direc tive
> >
> >
> >Can you imply consent from a 'no response'?
> >
> >
> >
> >Sukhvinder Hayer, Information Access Team.
> >London Fire and Emergency Planning Authority.
> >e: [log in to unmask]; t: 020 7587 6385.
> >
> >If you would like to find out more about information access then
please
> >visit: www.london-fire.gov.uk/foi or internally at
> >http://hotwire/management/info_access/content.htm
> >
> >
> >
> >
> >
> >
> >-----Original Message-----
> >From: Steve McCain [mailto:[log in to unmask]]
> >Sent: 17 September 2003 15:46
> >To: [log in to unmask]
> >Subject: Re: [data-protection] Privacy and Electronic Communications
> >Directive
> >
> >
> >We have just launched a web application to handle enquiries and
requests
> >for course booklets
> >and our prospectus.
> >We follow-up enquiries at later dates by sending information which I
> >suppose is marketing material,
> >for example about open days, by both post and by email & text
messages.
We
> >decided in the end
> >to have two separate questions on the form:-
> >
> >---------------------
> >
> >The data you submit will be stored in a University of Bradford
database,
> >and used to supply you with the information you requested.
> >We may also use the data at a later date to inform you of new courses
and
> >events within your chosen area.
> >
> >Would you like to receive further information through the post?
[SELECT
/
> >YES / NO]
> >
> >Would you like us to keep you up-to-date with emails and text
> >messages? [SELECT / YES / NO]
> >
> >-----------------------------
> >
> >If the enquirer chooses not to answer the questions then YES is
assumed
for
> >postal
> >delivery of further marketing material but NO is assumed for
electronic
> >delivery.
> >
> >This seemed the best way of reconciling the requirements of the new
> >directive with
> >the desire of our marketing dept to send enquirers information.
> >
> >We used selection boxes on the web form rather than tick boxes
because it
> >allows the user
> >to explicitly select YES or NO but allows them to refuse to answer
the
> >question (the user just sees
> >'SELECT' in the box and must select YES or NO from the pull-down list
below
> >the SELECT value).
> >It is not possible to tell with a tick box [Y / N] whether the 'Y'
answer
> >that is received by the software
> >at the back-end comes from the user or is just the default value. I
do
not
> >think that the data can be
> >taken as being accurate unless it is comes from an explicit response
from
> >the enquirer.
> >
> >hope this helps
> >
> >Steve McCain
> >
> >
> >
> >At 11:16 17/09/2003 +0100, you wrote:
> > >These regulations (Directive and draft UK) refer to having prior
consent
> >(I'm
> > >ignoring the "soft opt in" for the moment) for unsolicited
marketing by
> > >email/SMS. I would be interested to hear whether organisations are
going
> >for
> > >the route of a more explicit form of consent such as a tick box, or
if
a
> > >signature on a document, perhaps containing lots of information,
that
> > >includes
> > >a statement "I consent...", is considered adequate.
> > >
> > >Chris
> > >
> >
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