Category Archives: PECR

Data reform – hot news or hot air?

I’ve written a piece for the Mishcon de Reya website on the some of the key proposals (for our client-base) in today’s data protection reform announcement.

Data protection law reform – major changes, but the (mishcon.com)

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Filed under adequacy, consent, cookies, Data Protection, Data Protection Act 2018, DPO, GDPR, Information Commissioner, international transfers, nuisance calls, PECR, UK GDPR

Ineffectual powers

The Information Commissioner’s Office (ICO) has just announced that it has served a fine (strictly, a monetary penalty notice) of £80,000, under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), on a company which sent a large number of particularly tasteless SMSs during the pandemic, of this sort

“Get Debt FREE during the Lockdown! Write off 95% of ALL DEBTS with ALL charges and fees FROZEN. Government backed. Click [here] Stop 2optout”

(In passing, I’m rather surprised the ICO’s announcement gave hyperlinks to the offending, albeit broken, URLs.)

In that accompanying announcement, the ICO’s Head of Investigations is quoted as saying

The company director failed to cooperate with our investigations through concealing his identity by using false company details on his websites; changing the wording on the text messages; and, changing his company’s registered address after becoming aware of our investigation.

and we are told that the director

tried to evade the ICO investigations with different tactics since 2019, but investigators were determined to bring this company to account for plaguing people’s lives with thousands of spam messages

What is interesting in this context is that the ICO’s powers to issue fines for serious contraventions were added to, in 2018, to allow them also to fine company directors themselves (where the contravention was with the consent of connivance of the director, or attributable to any neglect on their part).

I asked the ICO if they had a comment on why no director fine was issued here, but they only wished to say

The action we have taken is proportionate and appropriate in the circumstances of this case.

This is fair enough: there may be facts which are not public, and I don’t criticise what is a sound piece of enforcement against unlawful marketing communications.

However, as far as I am aware, since the ICO acquired the powers to fine directors (and similar officers) under PECR they have not exercised those powers once. This is odd – they had long lobbied for the powers, and when the change in the law was being proposed, the then Commissioner Elizabeth Denham told The Register “It should have a real deterrent effect”. Maybe there are legal issues with actually ascribing liability to directors, or practical issues with tracking and pinning them down to try to enforce against them. If so, and if the 2018 change in the law has not had that “real deterrent effect”, is the ICO letting government know?

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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COVID booster messages and the law

GET BOOSTED NOW Every adult needs a COVID-19 booster vaccine to protect against Omicron. Get your COVID-19 vaccine or booster. See NHS website for details

On Boxing Day, this wording appears to have been sent as an SMS in effect to every mobile telephone number in the UK. The relevant government web page explains that the message is part of the national “Get Boosted Now” campaign to protect against the Omicron variant of COVID-19. The web page also thanks the Mobile Network Operators for “their assistance in helping deliver the vitally important Get Boosted Now message”.

It is inevitable that questions may get raised raised about the legality of the SMSs under data protection law. What is important to note is that, although – to the extent that the sending involved the processing of personal data – the GDPR may apply (or, rather, the UK GDPR) the relevant law is actually the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”). Under the doctrine of lex specialis where two laws govern the same situation, the more specific rules will prevail over more general rules. Put another way, if the more specific PECR can justify the sending of the SMSs, then the sending will also be justified under the more general provisions of UK GDPR.

Regulation 16A of PECR (inserted by a 2015 amendment), provides that where a “relevant communications provider” (in this case a Mobile Network Operator) is notified by a government minister (or certain other persons, such as chief constables) that an “emergency” has occurred, is occurring or is about to occur, and that it is expedient to use an emergency alert service, then the usual restrictions on the processing of traffic and location data can be disregarded. In this instance, given the wording on the government website, one assumes that such a notification was indeed made by a government minister under regulation 16A. (These are different emergency alerts to those proposed to be able to be sent under the National Emergency Alert system from 2022 which will not directly involve the mobile network operators.)

“Emergency” is not defined in PECR, so presumably will take its definition here from section 1(1)(a) of the Civil Contingencies Act 2004 – “an event or situation which threatens serious damage to human welfare in a place in the United Kingdom”.

The effect of this is that, if the SMSs are legal under PECR, they will also be legal under Article 6(1)(c) and 6(1)(e) of the UK GDPR (on the grounds that processing is necessary for compliance with a legal obligation to which the controller is subject, and/or necessary for the performance of a task carried out in the public interest).

There is an interesting side note as to whether, even though the SMSs count as emergency alerts, they might also be seen as direct marketing messages under regulations 22 and 23 of PECR, thus requiring the content of the recipient before they could be sent. Under the current guidance from the Information Commissioner (ICO), one might argue that they would be. “Direct marketing” is defined in the Data Protection Act 2018 as “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals” and the ICO defines it further by saying that this “covers any advertising or marketing material, not just commercial marketing. All promotional material falls within this definition, including material promoting the aims of not-for-profit organisations”. Following that line of thought, it is possible that the Omicron SMSs were both emergency alerts and direct marketing messages. This would be an odd state of affairs (and one doubts very much that a judge – or the ICO, if challenged on this – would actually agree with its own guidance and say that these SMSs were indeed direct marketing messages). The ICO is in the process of updating its direct marketing guidance, and might be well advised to consider the issue of emergency alerts (which aren’t covered in the current consultation document).

[Edited to add: I don’t think what I say above necessarily covers all the legal issues, and no doubt there are aspects of this that could have been done better, but I doubt very much there is any substantive legal challenge which can be made.]

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under communications data, consent, Data Protection, Data Protection Act 2018, GDPR, Information Commissioner, PECR, UK GDPR

ICO calls for global cookie standards (but why not enforce the law?)

The outgoing UK Information Commissioner, Elizabeth Denham, is calling on G7 countries to adopt her office’s new “vision” for websites and cookie consent.

Her challenge to fellow G7 data protection and privacy authorities has been issued at a virtual meeting taking place on 7 and 8 September, where they will be joined by the Organisation for Economic Cooperation and Development (OECD) and the World Economic Forum (WEF).

Denham says “There are nearly two billion websites out there taking account of the world’s privacy preferences. No single country can tackle this issue alone. That is why I am calling on my G7 colleagues to use our convening power. Together we can engage with technology firms and standards organisations to develop a coordinated approach to this challenge”.

What is not clear is whether her vision is, or can be, underpinned by legal provisions, or whether it will need to take the form of a non-enforceable set of standards and protocols. The proposal is said to mean that “web browsers, software applications and device settings [should] allow people to set lasting privacy preferences of their choosing, rather than having to do that through pop-ups every time they visit a website”. The most obvious way of doing this would be through a user’s own browser settings. However, previous attempts to introduce something similar – notably the “Do Not Track” protocol – foundered on the lack of adoption and the lack of legal enforceability.

Also unaddressed, at least in the advance communications, is why, if cookie compliance is a priority area for the Information Commissioner, there has been no enforcement action under the existing legal framework (which consists primarily of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (or “PECR”)). Those current laws state that a website operator must seek consent for the placing of all cookies unless they are essential for the website to function. Although many website operators try hard to comply, there are countless examples of ones who don’t, but who suffer no penalty.

Denham says that “no single country can tackle this alone”, but it is not clear why such a single country can’t at least take steps towards tackling it on domestic grounds. It is open to her to take action against domestic website operators who flout the law, and there is a good argument that such action would do more to encourage proper compliance than will the promotion or adoption of non-binding international standards.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Some PECR figures in light of a new monetary penalty notice

Presented without comment.

21,166,574 unsolicited direct marketing messages

£100,000 monetary penalty

Only £1k in the bank at the last filings

Zero chance of recovery?

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under Data Protection, enforcement, Information Commissioner, marketing, monetary penalty notice, PECR

ICO – “we’re very sorry we fined you”

***Update, 3 September. ICO have now published their apology – although scant on details it does state that “there were significantly fewer complaints than previously evidenced” and that this information led to the withdrawal of the MPN.***

It’s not unusual for the recipient of a monetary penalty notice (MPN) to appeal to the Information Tribunal. It’s not entirely unusual for such appeals to be settled by consent of the parties (normally when one of them concedes that its case is not tenable).

It’s much rarer, however, for a consent order to have attached to it a requirement that the Information Commissioner’s Office should apologise for serving the MPN in the first place. But that’s exactly what has recently happened. A consent order dated 25 September 2018 states that, by consent, the appeal by STS Commercial Limited is allowed, and that

The Commissioner will publish [for four weeks] on the Information Commissioner’s Office website in the section “News, blogs and speeches”, the following statement:

On 6 July 2018 the ICO announced that the Information Commissioner had imposed a fine of £60,000 on STS Commercial Ltd for allowing its lines to be used to send spam texts. STS Commercial Ltd appealed that penalty and upon considering the grounds of appeal, the ICO accepts that the appeal should be allowed and no monetary penalty should be imposed. The ICO apologises to STS Commercial Ltd.

Already, most of the traces of the MPN have been removed from the ICO’s website (and Google returns broken links), although the apology itself does not appear to have yet been uploaded.

Section 55B(5) of the Data Protection 1998 provides for the right of appeal, in respect of MPNs served by the ICO under section 55A for contraventions of the Privacy and Electronic Communications (EC Directive) Regulations 2003. And paragraph 37 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 provides that the Tribunal may

make a consent order disposing of the proceedings and making such other appropriate provision as the parties have agreed

One wonders what on earth occurred that has led not just to the appeal being disposed of, but such contrition from the ICO!

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under Information Commissioner, Information Tribunal, monetary penalty notice, PECR

Prospective customers and PECR

Who is a “prospective customer”, and can businesses rely on the PECR soft opt-in to send such persons unsolicited direct electronic marketing?

The law says – in terms – that one cannot send unsolicited direct marketing by electronic means (for instance by email) to an email address belonging to an “individual subscriber” (in broad terms, this will be a person’s home, or private, email address) unless the recipient has consented to receive it, or if the sender has obtained the contact details of the recipient in the course of the sale or negotiations for the sale of a product or service to that recipient, the marketing is in respect of the sender’s similar products and services only and the recipient was given the option to opt out of such marketing at the time their details were collected, and in any subsequent communication. This is what regulation 22 of the Privacy and Electronic Communications (EC Directive) 2003 (PECR) says, and has done for fifteen years (the General Data Protection Regulation (GDPR) has slightly altered what is meant by consent, but, other than that, is largely irrelevant here).

For the purposes of this blog post I want to focus on the following words in italics:

…if the sender has obtained the contact details of the recipient in the course of the sale or negotiations for the sale of a product or service…

This clearly means that direct electronic marketing can be sent, in appropriate circumstances, to someone who is not yet, and indeed might not ever become, an actual retail customer of the sender.

In light of this, I’m surprised to note the following words in the Information Commissioner’s Office’s guidance on PECR

The soft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts

It seems to me that “prospective customers” is capable of a range of meanings. On one hand, a prospective customer might be (as the ICO goes on to mention as an example) someone from a bought-in contact list, and with whom the sender who proposes to send electronic marketing has no relationship whatsoever. But, on the other hand, someone who enters into “negotiations for the sale of a product or service” is surely also a “prospective customer”?

I can’t see the ICO’s guidance here as anything but confusing and potentially misleading.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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GDPR doesn’t always mean “opt in”

TL;DR – the law says that when you’re buying something from them companies only have to offer you an opt out from marketing. GDPR hasn’t changed this.

I see a lot of criticism of companies on social media by people who accuse the former of not complying with the General Data Protection Regulation (GDPR). Here’s an example:

But the criticism is generally misguided. GDPR does not itself deal directly with direct marketing (other than to provide for an unqualified right to opt out of it (at Article 21(3)) and a statement in one of the recitals to the effect that the processing of personal data for the purposes of direct marketing may be regarded as carried out for a legitimate interest).

The operative law in the UK regarding electronic direct marketing is, and remains, The Privacy and Electronic Communications (EC Directive) Regulations 2003 (which implement a 2002 European Directive).

These provide that one cannot send direct marketing to an individual subscriber* by unsolicited “electronic mail” (which these days largely boils down to email and SMS) unless the recipient has consented or unless the sender

has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient…the direct marketing is in respect of that person’s similar products and services only…and the recipient has been 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, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.

In plain language, this means that when you buy, or enter into negotiations to buy, a product or service from someone, the seller only has to offer an “opt out” option for subsequent electronic marketing. Nothing in GDPR changes this.

*”individual subscriber” means the person who is a party to a contract with a provider of public electronic communications services for the supply of such services- in effect, this is likely to be someone using their personal email address, and not a work one).

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under consent, Data Protection, GDPR, marketing, PECR

The “GDPR consent” email I’d like to receive

“Dear Jon

You know us. We’re that firm you placed an order with a few months ago. You may remember that at the time we took your order we explained we were going to send occasional marketing emails to you about similar products and services, but you could opt out then, and at any subsequent point.

We know that since 2003 (with the Privacy and Electronic Communications Regulations) (PECR) it’s been unlawful to send unsolicited marketing emails except in circumstances like those above.

We’re contacting you now because we’ve noticed a lot of competitors (and other firms) who are either utterly confused or utterly misrepresenting a new law (separate to PECR) called the General Data Protection Regulation (GDPR). They’re claiming it means they have to contact you to reconfirm your consent to receive marketing emails.

GDPR actually says nothing of the sort. It does explain what “consent” means in data protection terms in a slightly more strict way, but for companies like us, who’ve respected our customers and prospective customers all along, it makes no difference.

In fact, the emails you’re getting from those companies, asking you to “reconsent”, are probably actually direct marketing emails themselves. And if the companies don’t already have your consent to send them they may well be breaking the law in sending them. If you think we’re exaggerating, look at the fine the Information Commissioner’s Office (ICO) levied on Honda last year.

In fact, you’d do well to look at the ICO’s website – it’s got some good stuff on this, both for customers like you, and for companies who are confused by this.

It all really boils down to treating customers well, and not assuming you can send direct electronic marketing without actually looking at what the law says.

So yes, this is a marketing email, and yes, it is lawful, and yes, it is more than a little pompous.”

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under consent, GDPR, Information Commissioner, marketing, PECR, spam

Rennard, the facts

Has the former LibDem Campaigns guru been engaging in unsolicited electronic marketing?

If I want to market my product or service to you as an individual, the general rule is that I cannot do so by email unless I have your prior consent informing me that you wish to receive it. This applies to me (if, say, I’m promoting this blog by email), it applies to any business, it applies to political parties, and it also applies to Baron Rennard of Wavertree, when he is promoting his new memoirs. However, a recent media story about the Lord Rennard’s promotional activities suggests he may not be aware of his legal obligations here, and for someone who has held senior roles within the Liberal Democrats, someone renowned as a “formidable and widely respected practitioner of political campaigning”, this is rather concerning.

The law (regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended)) outlaws the sending of unsolicited email marketing to individuals, unless the recipient has previously consented to receive the marketing (the exception to the general rule is that email marketing can be sent if the sender has obtained the recipient’s email address “in the course of the sale or negotiations for the sale of a product or service to that recipient” and if it is explained to the recipient that they can opt out – this is often known as the “soft opt-in“).

Lord Rennard is reported as saying

I have emailed people from my address book, or using publicly available email addresses, about the publication of a volume of memoirs

But just because one already holds someone’s email address, or just because an email address is in the public domain, this does not justify or permit the sending of unsolicited marketing. The European Directive which the PEC Regulations implement makes clear that people have a right to respect for their correspondence within the context of electronic communications, and that this right is a part of the fundamental rights to respect for protection of personal data, and respect for a private and family life. It may be a lot to expect the average person sending an email promoting a book to know this, but when the sender is someone whose reputation is in part based on his skills as a political campaigner, we should surely expect better (I say “in part” because, of course, the Lord Rennard is known for other things as well).

At a time when the use of digital data for political campaigning purposes is under intense scrutiny, it will be interesting to see what the Information Commissioner (who is said to be investigating Rennard’s marketing exercise) says. It might not seem the most serious of issues, but it encapsulates a lot.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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