In a message dated 15/04/05 00:12:54 GMT Daylight Time,
[log in to unmask] writes:
> Within the wording of the Act active consents only come into play with
> certain catagories of personal data ie 'sensitive data' or possibly if
> transfering personal data out of EEA territories. (Schedule 3 and 4 refer).
>
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Surely not. An active consent can be required under schedule 2 - part of the
first principle, where other conditions of the schedule cannot be met. I
would imagine, however, that condition 6(1) is met if the monitoring and
detection of plagiarism is an integral part of the marking system. An advisory
statement should suffice.
A difficulty over interpretation of the word "consent" arises when the
dictionary definition is used - common law cases suggest that if the individual is
not aware of the consequences of consent (or refusal to consent), and that if
the individual has not played any active part in giving consent, there is no
consent. Hence the opt-put route, favoured by many, is still lawful - except
that when the form is not returned, or the individual is asked to "write and let
us know" on a letter they may not have received, the practice is open to
challenge.
Ian B
Ian Buckland
Managing Director
Keep IT Legal Ltd
Please Note: The information given above does not replace or negate the need
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