UK Data Protection E-news - September 2010

    1. Ministry replies to EU Commission’s reasoned opinion
    2. Virgin in breach of Committee of Advertising (CAP) Code
    3. The ICO issues a new toolkit for charities


1. Ministry replies to EU Commission’s reasoned opinion

The government met the deadline for delivering a response to the EU Commission’s formal infringement procedures on the UK’s implementation of the DP Directive, but has not released any details. A Ministry of Justice spokesperson said at the beginning of September:

"The UK had two months to respond to the Commission's Reasoned Opinion on the implementation of the Data Protection Directive (95/46/EC) and has done so. It would be inappropriate to comment on the details of the response while negotiations are ongoing."

The Commission pointed out serious problems with audit powers which should extend to the private sector and be performed as random checks. Also, it said that the ICO lacks the power to assess the adequacy of other countries’ data protection regimes for the purpose of data transfers outside of the EU.

EU Justice Commissioner Viviane Reding said in June: "Having a watchdog with insufficient powers is like keeping your guard dog tied up in the basement.”

The UK government is currently seeking data controllers’ views on the current regime. A consultation, launched on 6 July, will close on 6 October 2010.  

2. Virgin in breach of Committee of Advertising (CAP) Code

The Advertising Standards Authority (ASA) has found Virgin in breach of its rules on 'database practice'. The CAP Code says that marketers need to take all necessary steps to ensure that marketing communications are not sent to consumers who have asked not to receive them. The CAP Code also requires that consumers can have their personal information suppressed.

The ruling of 28 July says that Virgin Media had sent a marketing email to an individual who opted out from receiving marketing communications by email.

Virgin said the e-mail was in fact sent to announce that Virgin Mobile had become part of the Virgin Media group, as customers might now want to start receiving marketing messages from them. Virgin claimed that this was not a marketing communication, and would not be in breach of the Data Protection Act, which allows organisations to contact customers in situations where they needed to ensure that customer data remained up-to-date.

However, the ASA pointed out that the message was not just about the change in business. The email message included details of prize incentives and exclusive deals. It also said that "As a thank you, you’ll be entered into our prize draw to win a free HTC HD2* phone ... ". The ASA thus concluded that this was indeed a marketing communication.

See the ruling

3. The ICO issues a new toolkit for charities

The ICO has made available information materials specifically created for organisations in the charity sector. The ‘Think Privacy’ materials are available for organisations to download from the ICO website and they are intended to promote privacy procedures in their own organisation.

For further details on the Privacy Laws & Business UK Newsletter, please click here.

Copyright Privacy Laws & Business 2010