My take on messageboards is that they do not send (unless one chooses to
receive notification of new posts) thus no spam email can happen. This is a
board moderator's problem. I moderate several and handle this with a velvet
fist in an iron glove :)
Using the A/B model below, each individual is technically the Data
Controller for each message, the more so if they post on behalf or their
organisations. We have each signed up to receive "stuff" but we made a
natural assumption about the type of stuff we expected to receive. And we
quiet reasonably hold the individual sending the stuff responsible for the
stuff they send.
For example, if I now advertise a porn site here you will rightly hold me
responsible for that post, and bar me. You will not, I think, complain to
or about JISCMail itself, though you might as our moderator if they are
paying attention. (A Moderator's life sucks btw)
_____
From: Lewis, Chris G. [mailto:[log in to unmask]]
Sent: 01 June 2005 09:51
To: Tim Trent; [log in to unmask]
Subject: RE: [data-protection] Lists held "remotely" - Who is the Data
Controller
That makes sense. But what about message boards or email forums like
JISCMAIL? It's a slightly differnet situation from someone as king a third
party to email to their marketing database. The emails are sent by
individuals to the host, and are forwarded automatically to all who have
signed up, or the messages are posted on the board automatically, but the
posting is, strictly speaking, done by the host - are they therefore liable
under the ECP Regs for "spamming"? Or is the original sender? Or both?
Message boards are a particularly interesting area, I think, as anyone
browsing the internet can read most of them (usually one only has to sign up
to post, not to read).
-----Original Message-----
From: This list is for those interested in Data Protection issues on behalf
of Tim Trent
Sent: Wed 01/06/2005 09:41
To: [log in to unmask]
Cc:
Subject: [data-protection] Lists held "remotely" - Who is the Data
Controller
This arose with a client of ours who was using the services of a magazine
publishing house to have the publisher send the client's email to the
publisher's list.
OK A is he client, B is the publisher.
A leased B's list and instructed B to send emails to B's list. B's list is
genuinely permission based, is reputable, and held in high regard in both
sender's and recipients' industries
A recipient complained to A that A was spamming. A took this up with B
because B had given correct safeguards that the list was permission based.
B at this point had assumed that they were the Data Controller of the list.
They were. BUT A was the Data Controller of the email operation because A
had instructed B to email, and to which subsection of B's lists to email.
B was thus Data Controller of the list and Data Processor for A's use of the
list. A was Data Controller and thus wholly responsible for that use of the
list.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Lewis, Chris G.
Sent: 01 June 2005 09:16
To: [log in to unmask]
Subject: Re: [data-protection] spam and email lists (was "That conference.
You are wrong to complain!")
One that has been occupying my mind is that if an organisation hosts an
email list like this one, or, say a message posting board, and if
"unsolicited marketing communications" are made via that list or forum, is
it just the individual sending/posting the communication the one breaking
the Electronic Communications and Privacy Regs (and also bits and bobs of
the DPA), or is the hosting party at fault as well? It seems to me that
technically the message is delivered by the list or forum host, so there is
potential for them to be held liable as well as the sender/poster. Has this
arisen anywhere? I know that it came up in the realm of libel (friends
reunited and other instances), but that's a whole different kettle of
miscellaneous swimming things.
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