I'm still of the view that the Directive is the authority on this and the Directive recognizes something we would call Kimplied consent"N where one does nothing when adequately informed. The guidance only partially captures that nuance.
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----------Original Message----------
From: "Simon Howarth (WSL)" <[log in to unmask]>
Sent: Fri, September 30, 2005 5:33 PM
To: [log in to unmask]
Subject: Re: [data-protection] Marketing to be opt-in?
Roland, what you state seems to be at odds with IC guidance, extract below.
Whilst I agree opt-out can be as you describe, it is accepted that
opt-out/opt-in is as described below....
"I'm confused about the terms "opt-in" and "opt-out". What do they mean? We
are concerned that the terms "opt-in" and "opt-out" can be misunderstood.
They are commonly taken to refer to the use of tick-boxes. In this context,
"opt-in" refers to a box that you tick to indicate agreement and "opt-out"
refers to a box that you tick to indicate objection. Marketers have
traditionally favoured the latter, i.e., where the default (an unticked
"opt-out" box) indicates a failure to register an objection. The fact that
someone has had an opportunity to object which they have not taken only
means that they have not objected. It does not mean that they have
consented. By itself, the failure to register an objection will be unlikely
to constitute valid consent. However, in context, a failure to indicate
objection may be part of the mechanism whereby a person indicates consent.
For example, if you receive a clear and prominent message along the
following lines, the fact that a suitably prominent opt-out box has not been
ticked may help establish that consent has been given: e.g. "By submitting
this registration form, you will be indicating your consent to receiving
email marketing messages from us unless you have indicated an objection to
receiving such messages by ticking the above box". In summary, the precise
mechanisms by which valid informed consent is obtained may vary. The crucial
consideration is that individuals must fully appreciate that they are
consenting and must fully appreciate what they are consenting to. Does the
phrase "for the time being" mean consent only lasts a finite period of time?
Many of the Regulations refer to consent being given "for the time being"."
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