The DTI announced yesterday (18 September 2003) that it has put in place regulations which implement the EU Directive on Privacy and Electronic Communications (2002/568/E.C.).
We have covered the Directive before on e80; this announcement is important as we now know that the provisions in the Directive will be given effect from 11th December 2003, giving businesses 12 weeks to adapt to the new law.
Organisations which promote their business by sending emails and direct marketeers are particularly affected by the regulations which:
- make it a legal requirement for businesses to obtain individuals' prior consent to the use of details provided by them before sending unsolicited direct marketing via e-mail or SMS (text) messages.
- require businesses to inform individuals at the time of purchase about the potential use of their details for future marketing and give them the opportunity to object to this.
- require customers to be given the opportunity to object to future marketing after each marketing e-mail or SMS message.
- allow such marketing to be undertaken if a customer is being marketed a "similar product" to the product purchased when the customer originally provided their details. What is a "similar product" remains unclear.
- require individuals to be informed if any software tracking device (such as email tracking software or a cookie) is used to identify, monitor or store their information.
- allow individuals the option to decline access to a web site which uses cookies.
There are other provisions relating to the use by mobile telephone network operators of "location" and "traffic" data.
The regulations will be enforced by the Office of the Information Commissioner which may issue an enforcement order for a breach of the regulations. A breach of such an enforcement order will be a criminal offence liable to a fine of up to GBP 5,000 in a magistrates court, or an unlimited fine if the trial is before a jury. In addition anyone who has suffered damages because the regulations have been breached has the right to sue the person responsible for compensation.
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