Feeds

ConLibs get shifty on spam and behavioural ads

Consultation shifty in the extreme

Maximizing your infrastructure through virtualization

Last week, the government published its ideas as to how it would implement the changes to EU Directive 2002/58/EC. In relation to spammers and behavioural advertising it has decided to keep the low privacy standards that were acceptable to the previous New Labour government.

The changes discussed in the consultation (pdf) are modifications to Directive 2002/58/EC introduced by the need to implement Directive 2009/136/EC. These new provisions have to be brought into UK law by 25 May next year (and this accounts for the consultation process launched by the government last week).

One of the changes that you won’t find explained in the consultation document is the complete re-wording of Article 13 of Directive 2002/58/EC – a key Article which regulates all forms of electronic marketing including spam. The consultation ignores this complete redrafting and fails to discuss options that consequently arise.

For example, I think Article 13 allows Member States to introduce consent/opt-out requirements for all forms of electronic marketing including behavioural marketing. However, the drafting of Article 13 also allows a continuation of a minimum privacy protection policy with respect to the use of electronic marketing by organisations. The government could have chosen to debate options that included the former; instead it has chosen to keep quiet and give its support to the latter.

The argument for Article 13 providing further controls to protect browsing on the internet can be seen if you read the text carefully. For example, “electronic mail” is a defined term in the Directive to mean “any text, voice, sound or image message sent over a public communications network” directed to a "recipient". So when the term is not used in some of the marketing provisions (as in Article 13(3) of the Directive), one can make the inference that the provision is intended to apply to other forms of marketing that is not conveyed by “electronic mail”. The assumption being that if the text of the Directive wanted to limit the provision in Article 13(3) to “electronic mail” it would have been in the text.

Also note the use of the word "recipient". This refers to anybody (eg a "user" of the system) who receives a marketing message and includes a subscriber (who is likely to be identifiable because they pay the bills). Note also that "users" are more likely to be anonymous (as they just use the subscriber's system). Keep this distinction in mind for a moment - it is important!

Throughout Article 13 there is a conspicuous absence of the use of “personal data”, although obviously personal data are subject to the e-marketing rules (eg an email address is often personal data – chris.pounder@amberhawk.com). So where the term “personal data” is not used (as in Article 13), then provisions are clearly intended to apply in circumstances where other “data” (ie beyond the narrow confines of personal data) are processed for a marketing purpose. As behavioural marketing involves such “not personal data” (according to Google and other behavioural marketers – see documents), the Article clearly allows for member states to legislate for control over marketing that does not use personal data.

By contrast, the consultation states that the effect of the revised Article 13 is limited to “personal data”. This is because the consultation document requires that any “data” used to convey “electronic mail” has to relate to an “individual subscriber” and because of this, the data have to be “personal data”. Note also (as mentioned above) that in the Directive "electronic mail" is defined in terms of a "recipient"; a recipient includes the subscriber and any user of the subscriber's system. The consultation document in effect equates "recipient" with "subscriber" - which is not what the Directive says!

Application security programs and practises

More from The Register

next story
UK government officially adopts Open Document Format
Microsoft insurgency fails, earns snarky remark from UK digital services head
Major problems beset UK ISP filth filters: But it's OK, nobody uses them
It's almost as though pr0n was actually rather popular
US Social Security 'wasted $300 million on an IT BOONDOGGLE'
Scrutiny committee bods probe derailed database project
HP, Microsoft prove it again: Big Business doesn't create jobs
SMEs get lip service - what they need is dinner at the Club
ITC: Seagate and LSI can infringe Realtek patents because Realtek isn't in the US
Land of the (get off scot) free, when it's a foreign owner
Arrr: Freetard-bothering Digital Economy Act tied up, thrown in the hold
Ministry of Fun confirms: Yes, we're busy doing nothing
Australia floats website blocks and ISP liability to stop copyright thieves
Big Content could get the right to order ISPs to stop traffic
Help yourself to anyone's photos FOR FREE, suggests UK.gov
Copyright law reforms will keep m'learned friends busy
prev story

Whitepapers

Top three mobile application threats
Prevent sensitive data leakage over insecure channels or stolen mobile devices.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Top 8 considerations to enable and simplify mobility
In this whitepaper learn how to successfully add mobile capabilities simply and cost effectively.
Application security programs and practises
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
The Essential Guide to IT Transformation
ServiceNow discusses three IT transformations that can help CIO's automate IT services to transform IT and the enterprise.