ANALYSIS: UK ICO’s Guide To New Laws Surrounding Privacy And Electronic Communications

By Steven Farmer, of Pillsbury Winthrop Shaw Pittman LLP, London.

On September 7, 2011, the UK Information Commissioner’s Office (“ICO”) published a comprehensive guide on current rules relating to privacy and electronic communications, in particular, direct marketing (automated calls, telephone marketing, e-mail and viral marketing), recent changes on using cookies and the measures a public electronic communications provider (“service provider”) should take to protect the security of its services, including the notification of any personal data breach to the ICO and the ICO’s new audit powers.

The 62-page Guide includes useful commentary on the UK Privacy and Electronic Communications Regulations (2426/2003) and, most notably, the UK Privacy and Electronic Communications (EC Directive) (Amendment) Regulations (2011/1208) (the “2011 Regulations”), which, with effect from May 26, 2011, implemented the amended EU e-Privacy Directive (2002/58/EC) in the United Kingdom (see analysis at WDPR, May 2011, page 9).

Direct Marketing

The Guide walks through the 2011 Regulations, explaining the rules on automated calls, telephone marketing, fax marketing, e-mail marketing and viral marketing, utilizing practical examples to illustrate the same.

A fair amount of detail surrounds the Telephone Preference Service (“TPS”) in the Guide, offering clarity on some arguably grey areas in terms of what would constitute a breach by a marketer and how it should deal with subscribers to the TPS.

For example, the Guide confirms that any mobile number can be registered with the TPS. However, if marketers wish to market by text, picture or video message, they need not screen against the TPS (although prior consent would be required unless the “soft opt-in” applied).

As regards existing customers who are registered on the TPS, the Guide goes on to explain that marketers may make marketing calls to a number registered with the TPS if the subscriber has notified that caller that he or she does not object to receiving such calls or the marketer is sure that any sales call (in a B2B context) would be welcomed (e.g., regular sales are made to that subscriber). In other words, the TPS can be overridden.

Unfortunately, however, some ambiguity does remain, given the Guide does not go on to define a number of key terms, such as what constitutes a “regular sale” or describe precisely how a caller can be sure his or her call will be welcomed…