I would summarise the advice as follows:
1) If you are printing adverts on payslips or including the advertising
material in the payslip or attached to it, it is likely you are using your payroll
list as a mailing list. If a number of leaflets are delivered to an office,
giving staff the opportunity to pick one up, or not, you are not junk mailing
(sorry providing important information from carefully selected organisations to
a targetted group);
2) If the advertising does not involve a *disclosure* of the information -
such as giving the payroll list to a marketing company - or that by responding
to the advert it would be clear who the person works for - then an opt-out will
suffice. This should be done on a starter's letter, eg "Congratulations, you
are offered .... etc .... Please tick this box if you do not wish to receive
important information from ....etc [ ] "
3) If the advertising does involve a disclosure (direct or inevitable) of the
payroll data, an opt in is required - eg "please tick the box if you WANT to
receive .... etc."
4) Incidentally, if you want to advertise to staff electronically instead or
as well as - eg via e-mail or adverts appearing on work-related screens on
your Intranet, you will need an opt-in for that, too.
To suggest that staff have opted in to junk mail because they chose to work
for you is a slight misunderstanding of "a freely given indication of
agreement" and advertising this way without an opt out is likely to be in direct breach
of Section 11. What you seem to be suggesting is that it is a contract
requirement "you can't work for us unless we can advertise to you" which is likely
to be an unfair contract term and you would not be able to claim that Schedule
2 condition 2(a) applies because the advertising is not "necessary" for the
completion of the contract.
Sorry the answer is so long.
Keep IT Legal Ltd
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In a message dated 16/03/04 16:39:51 GMT Standard Time,
[log in to unmask] writes:
> I've just had reason to revisit the ICO guidance on use of employee data
> marketing purposes. I have to say that on this occasion, I find it even
> more confusing and contradictory than my last visit!
> From: The Employment Practices DP Code Part 2: Employment Records
> Opening gambit on page 28 Section 7
> "They [employers] may market their own products or services, or those of
> other organisations such as insurance companies and charities which they
> believe might be of interest to their workers. Workers have a right not to
> have their personal data used for this purpose"
> In notes and examples it goes on to state...
> "If your organisation uses workers' details for advertising or marketing you
> should explain this fully at the outset, making clear what personal details
> will be used. You should give workers a clear opportunity to object and
> respect any objections."
> "An objection might be received ... This arrangement is often described as
> offering an 'opt-out'."
> OK that's pretty straight forward principle 1, 2 and section 11 stuff. It
> then goes on ...
> "The disclosure of workers' details for marketing requires express approval
> from each individual, for example by the worker sending an e-mail to the
> human resources department indicating agreement. This is often described as
> an 'opt-in'."
> If by "express approval", the guidance means 'informed consent' (not under
> duress) then I suggest that this would already have been achieved by the
> employee joining the organisation, particularly where the use of their data
> has been 'fully explained' and an opt-out provided.
> "The positive indication of consent is required because the disclosure of
> workers' information is intrusive and could amount to a breach of the
> employer's duty of confidence unless consent is obtained"
> I agree that a 'positive indication' is required before one can demonstrate
> reliable consent, so why is this second (apparently higher level) of consent
> required. The employer already has consent, as signified by the employee
> entering into a contract of employment.
> "This is often described as an 'opt-in'."
> These are very dangerous and ambiguous terms. Is this suggesting that a
> contract of employment, with detailed fair processing information and an
> opportunity to OPT-OUT of the direct marketing uses of personal data would
> NOT be sufficient to allow employers to market products an services to their
> The final straw ... the guidance goes on to state in S.7 (4) that ...
> "In any event, enclosing details of particular offers within a communication
> that they will receive anyway, for example in a pay-slip, is acceptable as
> long as the offer includes an explanation of how to object.
> So, a 'host mailing' is NOT considered to be a 'disclosure' of personal data
> for the purpose of direct marketing, and contrary to the guidance given just
> two bullet points above, you do NOT need to "explain this [use of their
> data] fully at the outset, making clear what personal details will be used",
> just give them an opt-out box.
> Any suggestions?
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