Where such identification is possible, the provisions of the Data Protection Act 1998 will apply. This requires all visitors to the site to be informed wherever a cookie or other tracking system enables the collection of personal data. This might be done via an on-line notification that appears before data collection begins, or via the website's privacy statement. However, if a notification provided via an on-line privacy statement is to be relied upon, it is important that at least some reference to the use of tracking technology is clearly displayed to all site visitors.
Where the data collected via a cookie does not identify an individual, the Data Protection Act will not apply. However, the Information Commissioner takes the view that any data that uniquely locates an individual in the world is personal data. Therefore where a cookie relates to a static IP address, data protection requirements must be complied with.
Q: I frequently use the Electoral Register to target potential clients. I have recently tried to obtain copies from various local authorities but have been refused. Why is this?
A: Local authorities are following advice issued by the Electoral Commission not to supply the Electoral Roll (ER) for commercial purposes. This advice follows a High Court decision which prevents ER data from being supplied to third parties for commercial purposes unless each member of the electorate has been given the opportunity to object to such supply. A private citizen, Mr Robertson from Pontefract, brought a legal action against Wakefield City Council as it refused to confirm that his details would not be supplied to third parties without his consent. He claimed that such refusal breached his right to respect for private and family life under human rights legislation.
The court upheld his claim. As a result, ER data cannot be disclosed to a third party for commercial purposes unless that individual has been given an opportunity to object. As this opportunity has not been given regarding the data of the current ER, local authorities will not supply it.
However, such refusal does breach a legal obligation placed on local authorities by statute to supply copies on request. To overcome this problem the electorate may have to be recontacted with an offer to object. The Government are proposing to introduce legislation to govern this matter prior to the next autumn canvass (September/ October 2002).
Q: My company uses e-mail marketing as its main marketing tool, but should we be using an opt-in or an opt-out approach?
A: At present an opt-out approach still applies to e-mail marketing. Thus, at the time the data is collected, individuals should be given an opportunity to object to the receipt of future email marketing approaches.
Agreement on the approach will have to be reached between the European Parliament and the European Council, but currently this is uncertain. Parliament has the opinion that a legal minimum of opt-out should be maintained but with the option that a country can introduce stricter requirements if they see fit. The Council of Ministers, on the other hand, would like to see the introduction of an opt-in approach unless the e-mail address belongs to an existing customer.
Jodie Sangster is the DMA's legal affairs manager. This column is not intended to constitute legal advice. For specific legal advice, you should contact your solicitor. To find out how to become a DMA member, contact: Sean Moore on 0207 766 4409, or email: sean@dma.org.uk.
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