Interesting one. I read it as: "If it is in your legitimate interests to do
this, and processing the data in this way is a necessary part of doing it,
then ... " whereas I think your interpretation is more on the lines of: "If
there is some necessity for you to do this, and doing it is in your
legitimate interests, then ..." The reason I think I'm right is that there
would be no need to provide for 'legitimate interests' if the higher test of
necessity also applied. I'm ready to be corrected on this, of course.
I agree that there is no necessity for using the data in this way, and that
prior consent would be preferable, but I don't think Condition six is ruled
out.
Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB
I hereby require any recipient of this message not to use my personal data
for direct marketing purposes.
----- Original Message -----
From: "simon howarth" <[log in to unmask]>
To: "Paul Ticher" <[log in to unmask]>
Cc: <[log in to unmask]>
Sent: Wednesday, July 23, 2008 11:41 AM
Subject: Re: [data-protection] Alumni Data
>I take your point. But in the cicumstances I am not sure that you can apply
>any of the Schedule 2 conditions except
> the gaining of consent.
>
> You are right that the interest must be legitatimate, but the sixth
> condition has the key word "necessary" within
> it. Is it necessary that the information be used for Alumni activities. I
> would say it's probably less necessary
> and more a "nice to have".
>
> Condition 2 is not relevant as there is no contract implied for this
> Condition 3 is not relevant
> Condition 4 is not relevant
> Condition 5 is not relevant
> Condition 6 we've covered
>
> This leaves condition 1, as they essentially would like to use this
> information but there is no overriding reason
> for it to be provided except where there is already an understanding
> (informed when they joined as student, maybe)
> and this is not the case in this instance - maybe an opportunity to
> rectify this for the September/October intakes?
>
> Simon Howarth.
>
> Quoting Paul Ticher <[log in to unmask]>:
>
>> Why is it not fair to say 'unless you say no, we will do ...' ? Of
>> course,
>> you don't comply with the first Schedule 2 Condition, because I agree
>> that
>> failure to reply isn't consent, but you may well meet one of the others.
>> The sixth Condition is the obvious one; it requires the balance of
>> interests
>>
>> to be considered: your interest must be 'legitimate', and there must be
>> no
>> 'unwarranted' interference in their rights, freedoms and legitimate
>> interests' (not an absence of interference).
>>
>> To me, the key in this case is not consent but transparency, with an opt
>> out
>>
>> as a safeguard in case there is a serious risk to the Data Subject's
>> rights,
>>
>> freedoms and legitimate interests.
>>
>> So I really don't think I disagree with Simon. If you are writing to ask
>> whether their details can be used, failure to reply means you can't. But
>> if
>>
>> you are writing to tell them what you are going to do, and can meet one
>> of
>> the other Conditions, failure to reply means you can (even if it's not
>> the
>> ideal situation).
>>
>>
>> Paul Ticher
>> 0116 273 8191
>> 22 Stoughton Drive North, Leicester LE5 5UB
>>
>> I hereby require any recipient of this message not to use my personal
>> data
>> for direct marketing purposes.
>>
>>
>> ----- Original Message -----
>> From: "simon howarth" <[log in to unmask]>
>> To: "Paul Ticher" <[log in to unmask]>
>> Cc: <[log in to unmask]>
>> Sent: Wednesday, July 23, 2008 10:23 AM
>> Subject: Re: [data-protection] Alumni Data
>>
>>
>> > I'm sorry, I don't agree with Paul and have experience with ICO
>> > involvement of this very thing from a utilities
>> > contact point of view.
>> >
>> > It is not fair to say "Unless you contact us to say no, we'll use your
>> > information" (or equivalent). Absence of an
>> > answer is not consent. It is not the same as implied consent via a form
>> > that someone is filling out where a
>> > contract may be implied. If the wording is correct on such a document
>> > then
>>
>> > consent can be implied. However, if you
>> > are contacting someone to ask if their details can be used you CANNOT
>> > assume that silence is consent, or state that
>> > this will be the case. The ICO provided this guidance several years ago
>> > to
>>
>> > us when I was doing some work for a well
>> > known elastictrickery firm.
>> >
>> > However, maybe foreseeability may be used here? Is it reasonable for a
>> > student to expect their personal details to
>> > be used in Alumni activities? I would suggest possibly, and perhaps ask
>> > the ICO what they think. If they agree,
>> > then information may be provided (if you wish) without asking, although
>> > you may decide not to be so draconian.
>> >
>> > Simon Howarth.
>> >
>> > Quoting Paul Ticher <[log in to unmask]>:
>> >
>> >> My view is that it would depend, at least partially, on what you told
>> >> them
>> >> when you asked for permission. If you said 'we want to use your data
>> >> but
>>
>> >> we
>> >>
>> >> need your consent', then non-response = no consent and you can't use
>> >> the
>> >> data. If you said 'we are going to use your data but you can stop us
>> >> if
>> >> you
>> >>
>> >> choose', then you are OK to use the data of those who didn't reply.
>> >>
>> >> This is a very common trap, which loads of organisations fall into.
>> >> You
>> >> have basically given people three options ('yes', 'no' and 'no reply')
>> >> when
>> >> you meant to give them two (either 'yes' and 'no reply' - which would
>> >> therefore equal 'no', or 'no' and 'no reply' - which would therefore
>> >> equal
>> >> yes).
>> >>
>> >> The only time when three choices make sense is when there are
>> >> genuinely
>> >> three options - full data on the site ('yes'), no data on the site
>> >> ('no')
>> >> and partial data on the site ('no reply') but unless these were
>> >> spelled
>> >> out
>> >> in the letter, I don't think they are now a reasonable course of
>> >> action.
>> >>
>> >> Paul Ticher
>> >> 0116 273 8191
>> >> 22 Stoughton Drive North, Leicester LE5 5UB
>> >>
>> >> I hereby require any recipient of this message not to use my personal
>> >> data
>> >> for direct marketing purposes.
>> >>
>> >>
>> >> ----- Original Message -----
>> >> From: "Sarah Rainford" <[log in to unmask]>
>> >> To: <[log in to unmask]>
>> >> Sent: Tuesday, July 22, 2008 3:37 PM
>> >> Subject: Alumni Data
>> >>
>> >>
>> >> > Colleagues
>> >> >
>> >> > I would be grateful for some advice on the following:
>> >> >
>> >> > We have bought into an external Alumni website provision facility
>> >> > who
>> >> > will
>> >> > be acting as a data processor on our behalf. I have been asked to
>> >> > provide
>> >> > former student data as part of the setting up process. The last two
>> >> > years
>> >> > leavers cohort have been canvassed on exit to determine approval of
>> >> > personal data being included on the website. A small minority
>> >> > replied
>> >> > explicit in their refusal and their data will not be included.
>> >> > The majority fall into two categories, approx one third who replied
>> >> > with
>> >> > permission granted and again I do not have an issue with these.
>> >> > Approx
>> >> > two thirds did not reply, but I have been asked to submit their
>> >> > personal
>> >> > data for Names and start/end year data to be viewed by other
>> >> > members.
>> >> > My
>> >> > understanding is that it will be a member only sign and former
>> >> > students
>> >> > are being contacted prior to launch to invite them to become
>> >> > members.
>> >> >
>> >> > I have also been asked to provide the last five years leavers data
>> >> > for
>> >> > names and start/end data only to be displayed. I think from my
>> >> > understanding of DPA that displaying even this small amount of
>> >> > personal
>> >> > data would be contravening the DPA as it is being used for a
>> >> > different
>> >> > purpose than it's original purpose(which was enrolment).
>> >> >
>> >> > I would also be grateful for colleagues comments on the request to
>> >> > provide
>> >> > current Personal Tutor names to add to the website for students who
>> >> > subscribe to build their profiles. These tutors have not provided
>> >> > permission for their names to be included. Again I am concerned
>> >> > about
>> >> > the
>> >> > external website providers request with regard to DPA.
>> >> >
>> >> > I look forward to your thoughts and comments
>> >> >
>> >> > Sarah Rainford
>> >> > CIS Manager
>> >> > Blackpool Sixth Form College
>> >> > 01253 394911 Ext:232
>> >> >
>> >> >
>> >> >
>> >> >
>> >>
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>> > --
>> > Simon Howarth
>> > The Information Edge
>> > 37 The Grange
>> > Cottam
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>
> --
> Simon Howarth
> The Information Edge
> 37 The Grange
> Cottam
> Preston
> PR4 0LR
>
> Office: 0870 991 3696
> Mobile: 07836 365588
>
> Webtech Systems trading as The Information Edge, registered in England No.
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>
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