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Privacy watchdog publishes e-privacy laws compliance guidance

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The Information Commissioner's Office (ICO) has gathered its guidance on electronic privacy laws in one place.

The UK's data protection watchdog's guidance includes amendments made to the Privacy and Electronic Communications Regulations (PECR) in May. The changes transposed an EU Directive into national law.

The amendments included changes to rules on email marketing and for gaining internet users' consent to "cookies" – small text files that websites store about users' online activity. It also introduced a requirement for organisations to inform the Information Commissioner's Office (ICO) about all personal data breaches.

The ICO's new centralised guide does not include any updated guidance on how businesses can comply with the new laws on cookies. The issue over how businesses can obtain users' consent to cookies in a non-obtrusive way continues to be heavily debated.

The ICO issued previous guidance, The Information Commission's Office advice guide (10-page / 126KB PDF), on what website operators can do to comply with the new laws.

The ICO's guide said that an electronic communications service provider "must take appropriate technological and organisational measures to safeguard the security of its services".

Service providers are also obliged to inform customers if there is a "significant risk to the security of the service" and let them know what the nature of that risk is, the measures it may take to "safeguard against the risk" and what "likely costs" that will involve for customers, the ICO said in its guide.

If service providers experience a personal data breach it must "without undue delay" tell the ICO and include a description of what has happened, the consequences and detail what the company is doing, or proposing to do, "to address the breach", the ICO said.

If a personal data breach is likely to "adversely affect the personal data or privacy of a subscriber or user" then service providers are also required to tell those people about the problem "without undue delay", unless the service provider has convinced the ICO that this is not necessary, the guide said.

"If the service provider has demonstrated to the satisfaction of the Information Commissioner" that it has "implemented appropriate technological protection measures which render the data unintelligible to any person who is not authorised to access it, and that those measures were applied to the data concerned in that breach", then it does not need to inform customers of the breach, the ICO said.

The guide also explained that service providers must log details about all personal data breaches and detailed the new powers that the ICO has to audit "the measures taken by a provider ... to safeguard the security of that service" and the providers' compliance with any "data breach notification requirements".

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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