E-Marketing Within The Law :: Laurence Kaye

8/14/2019 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


Introduction


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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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Laurence Kaye 3 February 2004Laurence Kaye3 February 2004

Identifying legal risk

Civil & Criminal

Corporate & Personal

Fines & penalties

Damages & injunctions

Unenforceable contracts

Reputational risk


Introduction


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Information flows>>>>>>


Business Context

Content & Data

Customer/prospect

HR

Internal/S.ware


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Business Context

Internal:

HR

Fin & Adm

Distributio

n

Sales &

Marketing

Editorial &

Production

Impact:H/M/L

LawBusiness

application

Info flowDivision


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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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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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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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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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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>>


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 >


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


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

Laurence Kaye February 3 2004

DP Law a potted history

A computer-driven thing

Council of Europe 1970s

OECD Guidelines

EU Directives

UK DP laws


Data Protection

MORE >


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Data Protection

Data Controller

Personal data Processing Data Subject Exemptions

Data Processor DP Principles

Notification

Transitional


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Data

information on computer


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


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


Data Protection


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Processing


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


Data Protection


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DP Principles


6. Observe rights of data subject

7. Keep data secure


outside EU

Process data fairly and lawfullyProcess data fairly and lawfully

Obtain and further process for

specified and lawful purposes



date


Data Protection

MORE>>


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Principle 1: Fair and lawful processing

3 elements of P1:

Schedule 2 & 3 conditions

Fair Processing Code

Lawful processing


Data Protection


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1st element: Schedule 2

consent


Data Protection

1st element: Schedule 3

explicitconsent


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2nd element:

Fair Processing Code


Data Protection


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3rd element:

Lawful processing


Data Protection


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DP Principles



7. Keep data secure


outside EU

1. Process data fairly and lawfully

Obtain and further process forObtain and further process for

specified and lawful purposesspecified and lawful purposes



date


Data Protection

MORE>>


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Principle 2: Obtain and further process for


Notification

No need to notify if all manual data!

No link with DP Principles

35 p.a.

Information on register>>>>>

www.dpr.gov.uk


Data Protection


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DP Principles



7. Keep data secure


outside EU




Process adequate, relevant andProcess adequate, relevant and

not excessive datanot excessive data Keep data accurate and up to

date


Data Protection


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DP Principles

5. Keep data no longer thanKeep data no longer thannecessarynecessary


7. Keep data secureKeep data secure


outside EU





not excessive data Keep data accurate and up toKeep data accurate and up to

datedate


Data Protection


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DP Principles


6. Observe rights of data subjectObserve rights of data subject

>>>>>

7. Keep data secure


outside EU


2. Obtain and further process for


3. Process adequate, relevant and

not excessive data4. Keep data accurate and up to

date


Data Protection

MORE>>


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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


Data Protection


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DP 8: EU exports

No transfer of personal data forprocessing unless 3rd countryprovides an adequate level of

protection


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


Data Protection


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Privacy & Electronic Communications (EC Dir.) Regs 03

Direct Marketing

Automated calling system

Fax

Telephone

E-mail


Electronic Privacy Regulations


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Direct Marketing Automated calling system

Individual only with prior consent

Corporate only with prior consent




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Direct Marketing Fax

Individual only with prior consent

Corporate right to object

Telephone preference service individuals only




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Direct Marketing Telephone

Individual right to object

Corporate right to object

Telephone preference service individuals only




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Direct Marketing e-mail

Definition

Individual subscribers

Prior consent

Existing customers

Means to object




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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




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Direct Marketing e-mail

Unsolicited ?

Prior consent




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Direct Marketing e-mail Prior consent

Tick the box

Tick a box

Dont tick a box

Term of agreement

E-mail to object




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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




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Direct Marketing e-mail means to object

1. Must not conceal identity

2. Provide a valid address to which request

communications to cease vital!




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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




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Enforcement

1. DPA enforcement provisions apply

2. + Right to bring proceedings for compensation

for failure to comply with Regulations




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Codes of Conduct

1. ASA/ CAP Code

2. ICSTIS Guidelines




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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)


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)


Codes of Conduct


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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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Laurence Kaye 3 February 2004Laurence Kaye Put Date here

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?


Copyright


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Laurence Kaye 3 February 2004Laurence Kaye Put Date here

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


Database right


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Policies

CULTURE

VALUES

THE LAW

POLICIES


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POLICIES & PROCESSES

Cultural alignment

Business and legal

input

Communication

Feedback

Monitoring

Updating


Policies


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Laurence Kaye February 3 2004

LAURENCE KAYE SOLICITORS

E: [email protected]

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/

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