The consultation, for some reason, overlooks the consequences of this distinction. It explains that the “provisions on the use of personal data for marketing certain services” (in Article 13) only require “minor modification”. Note that if the information were “data” then the changes would not be minor as they include that marketing which does not identify an individual (eg to users who might be targeted by behavioural marketers).
In other words, the consultation fails to explain the impact of Article 13 properly and to identify a range of options that could be debated as part of the consultation.
By the way, I should add that the statement in the consultation document (quoted above) is in line for the “Economical with the truth award - 2010”. This is a highly valued prize to be awarded by Amberhawk at the end of the year for the most misleading privacy statement that has a vestige of truth.
Finally the text of Article 13 uses the term “direct marketing” which is not defined. So if one assumes a definition of “direct marketing” similar to that in Section 11 of the Data Protection Act (“direct marketing” means “the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals”), then one can see that behavioural marketing can be captured. For example, if a marketing message depends on a user's browsing habits, then any user who exhibits a required browsing behaviour, receives a particular advert directed to them.
Last spring (4 May) I stated that the changes to Directive 2002/58/EC “will be an early test of the privacy credentials of the next government in the UK”. I think they have failed that test.
What is more disturbing is the way in which the government has failed the test. It has failed by deciding not to debate with the public the various pros and cons of the range of privacy options that could be available. Of course one can argue that an enhanced privacy protective option might be judged to harm economic activity but that position should form part of the informed debate.
My conclusion on the consultation: incomplete bordering on the misleading.
This story originally appeared at HAWKTALK, the blog of Amberhawk Training Ltd.
Andy Yates, Co-Founder of Spam Ratings
Very interesting article and discussion. My view is that email marketing, and indeed all forms of marketing, are all about transparency and consent.
If websites treat internet users fairly and openly by laying the options before them, letting them know what they intend to do and giving them a choice then they can help their businesses - not harm them.
As an example at www.SpamRatings.com we have just carried out detailed research that shows that more than half of 100 top UK brands breach current email best practice guidelines as outlined by the Information Commissioner's Office (the data protection UK authority) and the DMA - the marketing industry's own trade association.
In other words self regulation is clearly not working as short term economic pressure leads to websites bombarding customers with unwanted and unasked for emails.
The result - all this does is make customers reach more quickly for the delete button when they see emails from these 'trusted' brands - at once killing their future email marketing effort and damaging their brand and reputation.
When will websites learn they need to be more responsible with our private email address and our privacy? If they can't clean up their act themselves then we at Spam Ratings support legislation that will force them to act honestly and fairly with internet users and customers.
@Robert Hill - disintermediation is an alternative for some sites
"So sites that rely upon advertising to be free to the public (i.e., non-subscription) need targeting to STAY free to the public. The only other option is conversion to pay-for-play sites, which most users do NOT want."
The Reg demonstrates an alternative. Despite Adblock I can still see an ad for a broadband provider, which is embedded in the page (and from which a greater proportion of revenue presumably goes directly to the proprietors rather than to an intermediary).
It's true that some smaller or less focused sites might suffer if targeting were to be hampered, but the scrape/recycle/sensationalise sites that have proliferated, apparently with the single or main purpose of generating traffic and advertising revenue, would suffer more. Both advertisers and the browsing public would be better off if some of these were less profitable.
'Economic activity' which does little other than to draw money form one group of people to another smaller group disbenefits the majority and doesn't actually generate real wealth.
A modest proposal
The simple and obvious fix is to extend the Telephone Preference service to cover all electronic UCM and change the enabling legislation, if necessary, to make sure it can enforce compliance. If enforcement meant fines this would generate a new revenue stream for the Treasury, so the Coalition should be all for it.