davidwyatt on Wednesday, April 20, 2005 at 1:38 AM said:-
> The chance that a court will find against a controller given
> the ambiguity re consent types appears low.
The court of public opinion does not practice in the same way though.
With any organisation whose viability rests upon its good name the justified
viewpoint of its customers will probably determine data collection
practices. Granting some organisations will disguise true practices and
others will not have any such concerns.
Ian W
> -----Original Message-----
> From: This list is for those interested in Data Protection
> issues [mailto:[log in to unmask]] On Behalf Of davidwyatt
> Sent: Wednesday, April 20, 2005 1:38 AM
> To: [log in to unmask]
> Subject: Re: Plagiarism Detection and DPA
>
>
> No issue with that view Ian
>
> The observations I made were just to suggest to readers they
> should keep an open mind about the possibilities of designing
> compliance processes which use passive consent and FON rather
> than seeking active consent unless the data type and
> processing conditions actually require it.
>
> The chance that a court will find against a controller given
> the ambiguity re consent types appears low.
>
> David
>
> ----- Original Message -----
> From: <[log in to unmask]>
> To: <[log in to unmask]>
> Sent: Monday, April 18, 2005 7:29 AM
> Subject: Re: [data-protection] Plagiarism Detection and DPA
>
>
> >I don't disagree with any of your assertions, nor do I disagree with
> >your extrapolation of the terms in the directive. The only
> problem is
> >that by introducing interpreted primary legislation rather than the
> >directive itself, and without a clause in the Act explaining the
> >meanings of the two types of consent,
> > the only thing that courts can use in determining the
> meaning of "consent"
> > is
> > UK case law.
> >
> > Ian B
> >
> > Ian Buckland
> > Managing Director
> > Keep IT Legal Ltd
> >
> > Please Note: The information given above does not replace or negate
> > the need for proper legal advice and/or representation. It is
> > essential that you do not
> > rely upon any advice given without contacting your
> solicitor. If you need
> > further explanation of any points raised please contact
> Keep I.T. Legal
> > Ltd at
> > the address below:
> >
> > 55 Curbar Curve
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> > Fax: 01246 470742
> > E-mail: [log in to unmask]
> > Website: www.keepitlegal.co.uk
> >
> > ---------
> >
> > In a message dated 16/04/05 01:48:18 GMT Daylight Time,
> > [log in to unmask] writes:
> >
> >
> >> The underlying directive refered to consent in two ways in Art 7
> >> (relating to non sensitive data) referenced 'unambiguous
> consent' as
> >> one processing
> >> condition. Art 7 became Schedule 2.
> >>
> >> Art 8 referenced special catagories of data, (the sensitive data
> >> catagories). Processing these catagories were prohibited unless
> >> exempted by one of the listed conditions in the Article. Here the
> >> required consent was
> >> defined as 'explict consent'.
> >>
> >> Subsequent debate and discussion concluded there had to be a
> >> difference between the two consent requirements. I believe
> the early
> >> OIC guidance discussed this in detail (Section 1.6 - The Data
> >> Protection Act 1998 - An Introduction). My recollection of
> the guide
> >> was that unambiguous consent needed clear notice of
> intended use to
> >> be delivered and a form of implied acceptance ie data
> subject chooses
> >> to provide the information after receiving notice of use
> (arguably a
> >> passive response).
> >>
> >> Explicit consent was more likely to need evidence of an active
> >> response, signifying data subject's acceptance of
> understanding and
> >> agreeing the data uses. Without this a data controller has
> the risk
> >> of being unable to defend
> >> legitimate processing if relying on consent.
> >>
> >> Legitimising sensitive data processing was, and continues
> to be, an
> >> area of debate. Whilst not relevant to the context of plagarism I
> >> recall Art 8 section 3 relating to medical uses was one area where
> >> the UK Act was argued
> >> as permitting more than the directive permitted. (Compare
> the article to
> >> the
> >> relevant UK Act exemption).
> >>
> >> However it really down to data subjects to assert their rights in
> >> respect of lawaful processing- and its Friday,
> >>
> >
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