Data Protection Update

by Michael on 15 July, 2014

Once again, our membership of the Direct Marketing Association keeps us bang up to date on European and UK data protection developments. I went to the first ever DMA (then BDMA) Data Protection event before the first 1984 act, and I’ve been going ever since – it’s a hugely valuable source of information, both for current practice and likely changes. Not that they anticipated the panic last week

with the rush for new legislation to allow the police and security services to continue to access phone and internet records. It just goes to show that any new privacy legislation has to be thought through for all the consequences, although that doesn’t seem to bother the European courts too much. The right to be forgotten is going to be hugely interesting in terms of how big a right and how much can be forgotten.

 

So where are we on European legislation? Still up in the air really with the change of Commission – and one benefit of having somebody from Luxemburg in charge is that you can’t have a Data Commissioner from the same country – although she will be a Euro MP and nobody would be surprised if she re-emerges on a data committee very soon.

 

The key issue to be faced is whether we end up with a Regulation or a Directive. A regulation has no leeway, so the same size fits all across Europe. A directive has some leeway, so is what the UK wants. Strangely, it is also what Germany wants as their current laws could well be diluted by the proposed new regulations.

 

An overview is that electronic communications may not change very much as explicit consent is already required; telephone is likely to move to opt in; and postal is likely to stay as opt out. All will need greater clarity for consumers to know precisely what they are agreeing to.

 

For B2B, I remember sharing a platform at a DMA Data Protection annual seminar a few years ago with the DMA solicitor, and his view on B2B email addresses was that you could make a business offer but not a personal one. Telephone wasn’t even an issue. But it is now. Your name is personal in an email address, and your own phone extension is personal – so for B2B telemarketing, unless you know it is a switchboard number, you will have to treat it as personal and get opt in, assuming the legislation stays as proposed.

 

There are a whole range of issues to be decided and the earliest that will happen is in 2015, so the implementation will be early 2017 – or later.

 

We also had the Consumer Contracts bill into law on June 13th; Consumer Protection from Unfair Trading comes in on 1st October; and a Consumer Rights Bill will now be late 2015/early 2016 so may be impacted by a new parliament.

 

Some of the new legislation is to do with clarity. A cooling off period on contracts is extended from 7 to 14 days, but if terms aren’t clear on rights, it’s extended to a year!

 

So it’s worth reviewing all wording and getting it clear – and right – and doing so well in advance.

 

Michael Howe

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