E-Marketing Within The Law :: Laurence Kaye
Transcript of E-Marketing Within The Law :: Laurence Kaye
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Laurence Kaye 3 February 2004
ELECTRONIC PUBLISHERS FORUM
Marketing within the
law
Laurence Kaye & Hugh Jones
Laurence Kaye3 February 2004
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Agenda
Data Protection and Privacy
Managing rights in a digital world
Copyright in a Wired World
Developing Policies
Introduction
Business Context
Legal framework
Useful links:
www.informationcommissioner.gov.uk (click on
Privacy & Electronic Communications): &
www.cap.org.uk
Marketing Within The Law
Agenda
http://www.cap.org.uk/http://www.informationcommissioner.gov.uk/ -
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INTRODUCTION
Information integrity
Legal framework
Managing legal risk
Marketing Within The Law
Introduction
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Marketing Within The Law
Introduction
CULTURE
VALUES
THE LAW
POLICIES
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In those markets where we collect information relating to
identifiable healthcare professionals, we are committed to
using that information responsibly, transparently and in
compliance with local laws.
Privacy has become an increasingly important legislative and
public policy issue throughout the world. In this constantly
changing environment, IMS has established a Global Privacy
Council, whose primary mission is to develop and disseminate
comprehensive privacy principles and practices that reflect
national and local regulations.
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e-marketing law (some!)
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Identifying legal risk
Civil & Criminal
Corporate & Personal
Fines & penalties
Damages & injunctions
Unenforceable contracts
Reputational risk
Marketing Within The Law
Introduction
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Information flows>>>>>>
Marketing Within The Law
Business Context
Content & Data
Customer/prospect
HR
Internal/S.ware
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Marketing Within The Law
Business Context
Internal:
HR
Fin & Adm
Distributio
n
Sales &
Marketing
Editorial &
Production
Impact:H/M/L
LawBusiness
application
Info flowDivision
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Marketing Within The Law
Business Context
L > M
Copyright +
Database
right
Moral rights
Contract
Rights in;
Clearance ContentLiability
Content
&Data
Ed/Prod
Risk:H/M/L
LawBusiness
application
Info flowDivision
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Marketing Within The Law
Business Context
M > H
E-
Commerceregs
Privacy/dataprotection
Advertising
laws and regs
Web data
captureDM:
e-mail
post
Custom
erProspect
Sales &
Marketing
Risk:H/M/L
LawBusiness
application
Info flowDivision
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Marketing Within The Law
Business Context
M
E-
Commerceregs
DistanceSelling
Contract
Defamation Negligence
Infringement
Customer
contracts -infoproducts &services;
Info
productsInfoservices
Distributio
n
Risk:H/M/L
LawBusiness
application
Info flowDivision
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Marketing Within The Law
Business Context
M - H
Employmentlaw
Dataprotection law
RIPA
Interview
Appraisal HRrecords
Monitoring
Dismissal
Employme
ntrelationship
Employeeinformation
Internal:
HR
Impact:H/M/L
LawBusiness
application
Info flowDivision
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Marketing Within The Law
Business Context
M > H
Privacy/data
protection E-Commerceregs
Advertising
laws and regs
Web data
captureDM:
e-mail
fax
telephone
post
Custom
erProspect
Sales &
Marketing
Risk:H/M/L
LawBusiness
application
Info flowDivision
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ONLINE PUBLISHING
Information society service
Country of origin rule
Information requirements
Information about e-contracts
Placing the order
Liability: mere conduit > caching > hosting
e-Marketing>>
Marketing Within The Law
Legal Framework
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E-marketing: getting the picture
Data Protection Act 1998 &/or
The Privacy & Electronic Communications (EC
Directive) Regulations 2003 (The Regulations)
+ Electronic Commerce (EC) Directive Regs 02
+ CodesMORE >
Marketing Within The Law
Legal framework
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E-marketing: in a nutshell
Consent opt in or opt out? (Privacy Regulations)
Unsolicited commercial communications only
Identifying e-DM (E-Commerce Regulations)
Stop if required (DP)
Processing as well compliance with DPA
Dont forget the Codes
Marketing Within The Law
Legal framework
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MORE >
Marketing Within the Law
Data Protection
Back to basics
DATA PROTECTION ACT > Privacy Regs etc.
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ECHR
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DP Law a potted history
A computer-driven thing
Council of Europe 1970s
OECD Guidelines
EU Directives
UK DP laws
Marketing Within the Law
Data Protection
MORE >
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Marketing Within the Law
Data Protection
Data Controller
Personal data Processing Data Subject Exemptions
Data Processor DP Principles
Notification
Transitional
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Data
information on computer
Marketing Within the Law
Data Protection
Information in manual form
(relevant filing system)
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Personal Data What?
Data which can relate to a livingindividual who can be identified:
from those data, or
from those data and otherinformation which is in the possessionof, or is likely to come into the
possession of, the controller
Marketing Within the Law
Data Protection
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Sensitive personal data
physical or mental health or condition sexual life racial or ethnic origin political opinions
religious or similar beliefs TU membership commission/proceedings of offence
Marketing Within the Law
Data Protection
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Processing
Marketing Within the Law
Data Protection
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DP Principles
5. Keep data no longer thannecessary
6. Observe rights of data subjectObserve rights of data subject
7. Keep data secure
8. Ensure adequacy for data transfers
outside EU
Process data fairly and lawfullyProcess data fairly and lawfully
Obtain and further process forObtain and further process for
specified and lawful purposesspecified and lawful purposes
Process adequate, relevant and
not excessive data Keep data accurate and up to
date
Marketing Within the Law
Data Protection
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DP Principles
5. Keep data no longer thannecessary
6. Observe rights of data subject
7. Keep data secure
8. Ensure adequacy for data transfers
outside EU
Process data fairly and lawfullyProcess data fairly and lawfully
Obtain and further process for
specified and lawful purposes
Process adequate, relevant and
not excessive data Keep data accurate and up to
date
Marketing Within the Law
Data Protection
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Principle 1: Fair and lawful processing
3 elements of P1:
Schedule 2 & 3 conditions
Fair Processing Code
Lawful processing
Marketing Within the Law
Data Protection
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Principle 1: Fair and lawful processing
1st element: Schedule 2
consent
Marketing Within the Law
Data Protection
1st element: Schedule 3
explicitconsent
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Principle 1: Fair and lawful processing
2nd element:
Fair Processing Code
Marketing Within the Law
Data Protection
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Principle 1: Fair and lawful processing
3rd element:
Lawful processing
Marketing Within the Law
Data Protection
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DP Principles
5. Keep data no longer thannecessary
6. Observe rights of data subject
7. Keep data secure
8. Ensure adequacy for data transfers
outside EU
1. Process data fairly and lawfully
Obtain and further process forObtain and further process for
specified and lawful purposesspecified and lawful purposes
Process adequate, relevant and
not excessive data Keep data accurate and up to
date
Marketing Within the Law
Data Protection
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Principle 2: Obtain and further process for
specified and lawful purposes
Notification
No need to notify if all manual data!
No link with DP Principles
35 p.a.
Information on register>>>>>
www.dpr.gov.uk
Marketing Within the Law
Data Protection
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DP Principles
5. Keep data no longer thannecessary
6. Observe rights of data subject
7. Keep data secure
8. Ensure adequacy for data transfers
outside EU
1. Process data fairly and lawfully
Obtain and further process for
specified and lawful purposes
Process adequate, relevant andProcess adequate, relevant and
not excessive datanot excessive data Keep data accurate and up to
date
Marketing Within the Law
Data Protection
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DP Principles
5. Keep data no longer thanKeep data no longer thannecessarynecessary
6. Observe rights of data subject
7. Keep data secureKeep data secure
8. Ensure adequacy for data transfers
outside EU
1. Process data fairly and lawfully
Obtain and further process for
specified and lawful purposes
Process adequate, relevant and
not excessive data Keep data accurate and up toKeep data accurate and up to
datedate
Marketing Within the Law
Data Protection
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DP Principles
5. Keep data no longer thannecessary
6. Observe rights of data subjectObserve rights of data subject
>>>>>
7. Keep data secure
8. Ensure adequacy for data transfers
outside EU
1. Process data fairly and lawfully
2. Obtain and further process for
specified and lawful purposes
3. Process adequate, relevant and
not excessive data4. Keep data accurate and up to
date
Marketing Within the Law
Data Protection
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DP 6: Observe rights of data subject
Subject access requests
exemptions
Rights to prevent processing:
for direct marketing;
damage or distress
Marketing Within the Law
Data Protection
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DP 8: EU exports
No transfer of personal data forprocessing unless 3rd countryprovides an adequate level of
protection
Marketing Within the Law
Data Protection
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RISKS OF NON COMPLIANCE
ICs action
enforcement
prosecutions
DP Tribunal cases
Subject matter
Individuals action
compensation
complaints
Bad publicity
Marketing Within the Law
Data Protection
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing
Automated calling system
Fax
Telephone
E-mail
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing Automated calling system
Individual only with prior consent
Corporate only with prior consent
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing Fax
Individual only with prior consent
Corporate right to object
Telephone preference service individuals only
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing Telephone
Individual right to object
Corporate right to object
Telephone preference service individuals only
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing e-mail
Definition
Individual subscribers
Prior consent
Existing customers
Means to object
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing e-mail individual subscribers
Regs only apply to individual subscribers!
Telephone & fax = contract holder
E-mail: Domain name owner, ISP contract holder,
home workers?
corporate employees
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing e-mail
Unsolicited ?
Prior consent
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing e-mail Prior consent
Tick the box
Tick a box
Dont tick a box
Term of agreement
E-mail to object
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing e-mail existing customers
You can send e-mail for DM purposes to an individual
subscriber if:
1. Contact details obtained in the course of sale or
negotiations for the sale
2. Similar products and services
3. Simple means to refuse use of contact details
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing e-mail means to object
1. Must not conceal identity
2. Provide a valid address to which request
communications to cease vital!
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Direct Marketing e-mail Mailing Lists
1. Your pre 11 December 2003 Lists
2. Your post 11 December 2003 Lists
3. Third party electronic mailing lists
Marketing Within the Law
Electronic Privacy Regulations
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Privacy & Electronic Communications (EC Dir.) Regs 03
Enforcement
1. DPA enforcement provisions apply
2. + Right to bring proceedings for compensation
for failure to comply with Regulations
Marketing Within the Law
Electronic Privacy Regulations
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Codes of Conduct
1. ASA/ CAP Code
2. ICSTIS Guidelines
Marketing Within the Law
Electronic Privacy Regulations
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Codes of Conduct
ASA / CAP Code
Rule 43.4 explicit consent of consumers is required before:
Marketing by fax
Marketing by e-mail or SMS save that marketers may
market similar products to existing customers without
explicit consent so long as opportunity to object is given
See The Training Guild Case (10/9/03)
Marketing Within the Law
Codes of Conduct
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Codes of Conduct
ICSTIS Guidelines
Rule 3.9:
Service providers must use all reasonable endeavours to
ensure that promotional material does not reach those for
whom.it is likely to be inappropriate
(e.g. premium rate numbers)
Marketing Within the Law
Codes of Conduct
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Marketing Within the Law
Copyright
L > M
Copyright
Databaseright
Moral rights
[Contract
Defamation
Negligent Infringement]
Rights in;
Clearance Content
Liability
Content
&Data
Ed/Prod
Risk:H/M/L
LawBusiness
application
Info flowDivision
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Managing rights in a digital world:EU Copyright Directive UK implementation October 2003
Exclusive right of Communication/Making
Available
Non-Commercial proviso for exceptions
Temporary and transient copying Article 5.1 Enforcement Directive and Notice And Take
Down
Coming soon Rights management/Contracts?
Marketing Within the Law
Copyright
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COPYRIGHT IN A WIRED WORLD
Licensing the Internet and territorial rights
Consortia and site licensing/pay per view
Technological protection or Open Access?
Article 6.4
The developing world and funding issues
Marketing Within the Law
Database right
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Marketing Within the Law
Policies
CULTURE
VALUES
THE LAW
POLICIES
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POLICIES & PROCESSES
Cultural alignment
Business and legal
input
Communication
Feedback
Monitoring
Updating
Marketing Within the Law
Policies
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LAURENCE KAYE SOLICITORS
W: www.laurencekaye.com(please check our
website for information about our services to the
publishing industry, including subscription for our
free e-newsletter)
T: (44) (0)1923 352 117
M: (44) (07)768 190 159
E-Pub 04
Thanks for your attention!
http://www.laurencekaye.com/