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ConLibs get shifty on spam and behavioural ads

Consultation shifty in the extreme

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.

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