Tag Archives: consent

PECR: The forgotten relative

Much of the focus in relation to data protection and privacy law is on implementation of the Genera Data Protection Regulation, which becomes applicable from 25 May 2018.  However, many of the discussions that are taking place in respect of GDPR implementation are forgetting the GDPR’s older cousin:  the snappily named Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).  This Directive from the European Union dating from 2002 was implemented in the United Kingdom through the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).

 The Directive on privacy and electronic communications is concerned with the processing of personal data and the protection of privacy in the electronic communications sector and is of importance to telecommunications providers, Internet Service Providers and any person or organisation who conducts direct marketing by electronic means; however, this blog post is concerned only with direct marketing and is a follow-up to my recent blog post on whether consent is required under the GDPR.

The GDPR might be the big thing at the moment, but it is important not to consider it in isolation.  When thinking about GDPR implementation it is necessary to take a holistic view and think about how it interacts with other laws because these other laws don’t stop having effect just because of the GDPR.  Therefore, it is essential to consider how these other laws affect your GDPR implementation.

The rules on direct marketing by electronic means are relatively simple and straightforward, but this does not stop unlawful behaviour from taking place on an industrial scale.  Rarely does a month go past without the Information Commissioner’s Office publishing information on enforcement action it has taken against businesses arising out of failing to comply with PECR, especially since the law changed to lower the legal threshold for Monetary Penalty Notices in relation to PECR infringements.

Electronic Mail
Electronic Mail includes E-mail and SMS text messaging.  The general rule for direct marketing by electronic mail is that you need consent, as defined by the 1995 Data Protection Directive.  This means that you must have a freely given, specific and informed indication that the person to whom you are directing the marketing wants to receive such marketing.

There is an exception to this which is referred to as the “soft opt-in”.  This applies where you have obtained a person’s personal data “in the course of the sale or negotiations for the sale of a product or service” to them.  You can then send direct marketing to this person, without first gaining their express consent, where you are marketing your own similar products or services.  The data subject must be “given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected”.

Each direct marketing communication that is sent must include a simple means of opt-out of further direct marketing content (and this must be free of charge, except for the costs of transmission of the opt-out).

Telephone:  Automated calls
The rules for direct marketing by telephone are split into automated and unsolicited live telesales calls.  In the case of automated calls with recorded information played when the phone line being called is answered, the subscriber (i.e. the person who has contracted with the telephone service provider) must have notified the caller (or the person instigating the call where the caller is a third party acting on behalf of the instigator) that, for the time being, they consent to receiving such calls.  Again, this requires there to be a freely given, specific and informed indication.  Consent can be withdrawn.

Telephone:  Unsolicited live telesales calls
You do not require consent to make such calls; however, you must not make such calls where the subscriber has notified you that they do not wish to receive such calls, or if the number is registered with the Telephone Preference Service (TPS).  You can call numbers registered with the TPS where the subscriber has consented to receiving calls from you, notwithstanding that the number is registered with the TPS.  Consent can, as always, be withdrawn at a later date.

Yes, it is still a thing and some people (and indeed whole sectors) still use fax machines.  However, as it is more or less an obsolete technology all I will say on the matter is that PECR regulates the use of fax for direct marketing and the relevant parts are Regulations 20 and 25.

That is a very brief run through of the relevant law as it stands today.  However, a couple of points to note in closing:  Firstly, the EU is currently working on a replacement to the current Directive.  It had been anticipated that the new E-Privacy Regulation would be implemented alongside the GDPR, but work started on it too late and so it won’t.  Whether it will be finalised in and in force prior to Brexit is something that we will need to wait and see.  Secondly, depending on what happens with the Brexit negotiations it may still end up being part of UK law even if it comes into force after the UK leaves the EU.  Thirdly, there is likely to be some temporary adjustments to PECR from 25 May 2018, that is because PECR adopts a lot of definitions from the Data Protection Act 1998 and the 1995 Data Protection Directive (both of which will be repealed on 25 May 2018).  Finally, the domestic Regulations were made under the European Communities Act 1972; therefore the European Union (Withdrawal) Bill may well have some impact upon them.

Alistair Sloan

If you would like advice or assistance with a privacy or data protection matter, or any other information law concern then contact Alistair Sloan on 0345 450 0123 or send him an E-mail.

GDPR: Do I need consent?

The General Data Protection Regulation becomes applicable in the United Kingdom later this year, the 25th May to be precise.  There is a lot of information out there on the GDPR; some of which is incorrect.  Relying upon incorrect information could cause data controllers and processors unnecessary headaches.

In this blog post I am going to focus on just one aspect of the GDPR, upon which there seems to still be a large amount of misinformation floating around.  It is an issue of such fundamental importance that getting it wrong will inevitably lead to headaches and crises in businesses and other organisations that simply do not need to exist:  that aspect is consent.

It is not difficult to find information on the internet selling the idea that the GDPR requires the consent of data subjects before a data controller can process personal data.  It should be obvious, but in case it is not, that is completely false.  Article 6 of the GDPR sets out six grounds which make the processing of personal data lawful under the GDPR; one of those six grounds is indeed consent, but it therefore follows that there are five other grounds of lawful processing which do not require the consent of the data subject.

It is important to understand Article 6 to ensure that your GDPR preparations are on the right track; one of the first things that any data controller who is preparing for the GDPR needs to establish is upon what basis they are processing the personal data.  If a data controller goes off in the wrong direction by assuming that consent is always required then they’re going to hit a problem:  what if a data subject refuses you consent, or withdraws consent which was previously given, to process personal data where you have a statutory obligation or some other compelling business need to process it?  You’re still going to have to process that personal data, but having asked the data subject for their consent you have given them a false impression.  One of the most fundamental aspects of the GDPR is fairness:  giving a data subject a false impression on the need for consent cannot be considered to be fair.  In short, if you need to process personal data irrespective of whether the data subject has given their consent; then consent is not the appropriate Article 6 ground to rely upon.

As noted above, there are a total of six grounds in Article 6 of the GDPR which make the processing lawful.  The grounds in Article 6 are (and note they do not appear in any special order of importance):

  • the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
  • the processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract
  • the processing is necessary for compliance with a legal obligation to which the controller is subject
  • the processing is necessary in order to protect the vital interests of the data subject or of another natural person
  • the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller
  • the processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child

Picking the right Article 6 grounds to legitimise your processing is vital; it feeds into so many other aspects of data protection compliance (such as your privacy notice).  Consent should only become a consideration where none of the other grounds of lawful processing in Article 6 apply.  Where some may be becoming confused with regards to consent is the requirement to be transparent with data subjects.  You have to tell data subjects clearly, and in easy to understand language, what personal data you are processing about them, how it is being processed and why you are processing it.  This is not the same as gaining their consent and should not be confused as such.

Alistair Sloan

If you require advice and assistance with any aspect of getting prepared for the GDPR, or any other Privacy and Data Protection law matter then contact us on 0345 450 0123 or you can send Alistair Sloan and E-mail.