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Guest opinion: Government move just made data rules more complex

Dene Walsh

The question on whether the UK will adopt Brussel’s EU data law (GDPR) following Brexit has just got more complicated with government introducing a law ordering a complete review of direct marketing rules.

This means the decision on how manufacturers and dealers will be allowed to use sales and service data is even more unpredictable.

Parliament has now approved the first reading of the Digital Economy Bill that will instruct the Information Commissioner to prepare a code of practice on direct marketing with a clear instruction that relevant parties must be consulted.

In addition, Minister of State at the Department of Business Energy and Industrial Strategy, Baroness Neville Rolfe, has called for contributions in shaping the future of marketing regulation by declaring that she is “very much in listening mode”.

The minister has stated there can be no way of knowing whether or not GDPR is likely to apply to the UK until trade negotiations with the EU begin.

Given that the Government has also not decided its timetable to establish its bargaining position with Brussels it means it is now not possible to speculate about EU influence on data regulation change, or possible timing. 

With the Digital Economy Bill being sponsored by government itself, and written into the Queens Speech, it is likely to come into law far more quickly than the conclusion of EU trade talks relating to data regulation, with the additional possibility of the Information Commissioner deciding new direct marketing rules before negotiators have finished their job.

Although the future of direct marketing regulation is likely hang in the air for some time the situation does present an opportunity for all parties to review all relevant rules.

This would be the first strategic examination of rules on all aspects of direct marketing.

Such a review, which matches Baroness Rolfe’s intentions and government policy, could include all elements of commercial communication, including the telephone preference service, and regulation by the Ministry of Justice, Advertising Standards Authority and Committee of Advertising Practice.

This would ensure that in future rules do not overlap and contradict each other.

Clashes of authority boundaries currently put customer marketing departments in an unfair situation in which they may have to decide which rules to break based on which regulatory authority is likely to hand out the least severe punishment. 

Although it is not possible for customer marketers to plan ahead for data compliance there is the possibility that future regulation may be seamless for the first time.    

Author: Dene Walsh (pictured), operations and compliance director, Verso Group

Note: The Digital Economy Bill (pdf).

Below is the section relating to direct marketing followed by the official covering explanation.

Unedited text from Digital Economy Bill 

To make provision about electronic communications infrastructure and services; to provide for restricting access to online pornography; to make provision about protection of intellectual property in connection with electronic communications; to make provision about data-sharing; to make provision about functions of OFCOM in relation to the BBC; to provide for determination by the BBC of age-related TV licence fee concessions; to make provision about the regulation of direct marketing; to make other provision about OFCOM and its functions; and for connected purposes. 

Key points:

1   Strengthening the ICO’s powers

2   New protections for individuals’ rights

3   A new direct marketing code of practice

4   Electronic communications infrastructure and services

5   Restriction of underage access to pornography

 

(1) (2)  Direct marketing code

Direct marketing code

The Data Protection Act 1998 is amended as follows.
After section 52A insert—
“52AA direct marketing code 20

5  (1)  The commissioner must prepare a code of practice which contains—

1                    (a)  practical guidance in relation to the carrying out of direct marketing in accordance with the requirements of this act and the Privacy and Electronic Communications (EC Directive)

Regulations 2003 (S.I. 2003/2426), and 25

2                    (b)  such other guidance as the commissioner considers appropriate to promote good practice in direct marketing.

2  (2)  For this purpose “good practice” means such practice in direct marketing as appears to the commissioner to be desirable having regard to the interests of data subjects and others, and includes (but is 30 not limited to) compliance with the requirements mentioned in subsection (1)(a).

3   

(3)  Before a code is prepared under this section, the commissioner must consult such of the following as the commissioner considers appropriate— 35

(a) trade associations (within the meaning of section 51); (b) data subjects;

(c) persons who appear to the commissioner to represent the interests of data subjects. 

         

This is the official explanation of this part of the bill:

            237  This clause inserts new sections 52AA into the Data Protection Act 1998(“the 1998 Act”) and makes amendments to sections 51 and 52B to 52E. 

            238  New section 52AA places the Information Commissioner under a duty to publish and keep under review a direct marketing code of practice. 

            239  New section 52AA(1) and (2) provide that the code will contain practical guidance and any other guidance that promotes good practice in direct marketing activities. Good practice is defined as practice that appears to the Information Commissioner to be desirable including, but not limited to, compliance with the requirements of the 1998 Act and the PECR. When deciding what constitutes good practice, the Information Commissioner must have regard to the interests of data subjects and others. 

240  New section 52AA(3) requires that in preparing the code the   Information Commissioner must consult, as he or she considers appropriate, with trade associations, data subjects and persons who represent the interests of data subjects. 

            241  New section 52AA(4) applies the definition of direct marketing in section 11(3) of the 1998 Act, which defines direct marketing as the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals. 

            242  Subsections (3) to (8) amend sections 51(5A) and 52B to 52E of the 1998 Act so that these provisions apply to the direct marketing code of practice as well as to the data‐sharing code of practice, established under section 52A. These provisions set out the procedure to be adopted when preparing the code, require the code to be kept under review and altered or replaced as necessary, provide for the publishing of the code and set out the legal effect of the code.



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