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 Bricket Wood, St Albans, Herts, AL2 3XN Tel/Fax: 01923 661999 Mobile: 07779 019998 www.getsoundadvice.com The contents of the e-mail and any transmitted files are confidential and intended solely for the use of the individual or entity to whom they are addressed. gsa hereby excludes any warranty and any liability as to the quality or accuracy of the contents of this e-mail and any attached transmitted files. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited. If you have received this e-mail in error please notify [log in to unmask] This footnote also confirms that this email message has been swept by Norton anti-virus software for the presence of computer viruses. -----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 > > > > > > >^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > > All archives of messages are stored permanently and are > > available to the world wide web community at large at > > http://www.jiscmail.ac.uk/lists/data-protection.html > > If you wish to leave this list please send the command > > leave data-protection to [log in to unmask] > > All user commands can be found at : - > > http://www.jiscmail.ac.uk/help/commandref.htm > > (all commands go to [log in to unmask] not the list please) > >^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > > > > > >*********************************************************************** **** * > > > > > >SMOKE ALARMS SAVE LIVES > > > >Go to London Fire at www.london-fire.gov.uk/firesafety > > > >This email is confidential to the addressee only. 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