e-Communications directive: MEPs vote on cookie compromise

By Marc Dautlich, ZDNet.co.uk, 11 June, 2002 16:02

Finally, at the time of writing it was still not clear whether these provisions would be subject to a further requirement that the marketing be for a "similar product" to that in relation to which the customer's details were originally gathered. If this restriction is included, it will undoubtedly lead to uncertainty for businesses about just how "similar" the new product advertised needs to be to avoid breaching the legislation. The practice of disguising or concealing the identity of the sender of unsolicited communications , or failing to provide an address to request that such communications cease, will also be prohibited. Telesales, fax and automated calling systems: the status quo with regard to marketing by these methods remains unchanged, i.e, they may only be used to contact an individual with his or her prior consent. Data retention: the Directive will allow Member States to pass national laws obliging service providers to retain communications data -- such as traffic and billing information -- for fixed time periods for law enforcement purposes. This aspect of the Directive also proved controversial, with both the privacy lobby and the telecoms industry pressing for restrictions on governmental powers in this regard. The compromise position means that any national data retention measures must be "necessary, appropriate and proportionate" to safeguard national security or combat crime. In practical terms, service providers in the UK must wait for the draft Code of Conduct under the Anti-Terrorism, Crime and Security Act 2001, expected to be release for consultation this summer, to have a clear picture of exactly what data they will be required to hold on to, and for how long. Other issues: the wide-ranging Directive also gives individuals the right to determine the extent to which their personal details appear in public directories. Sanctions: at this stage, it remains to be seen what the deterrent for breaching these provisions will be. It will be left to Member States to set the sanctions for breaches of the new legislation. Next steps for online businesses
Arguably, the new Directive represents a change of emphasis rather than a change in the substance of data protection obligations. The Directive still needs to be formally adopted by the European Council (this expected to happen during the summer) and Member States will then have until the end of 2003 in which to implement the new measures. There may be some scope to lobby the UK government for a business-friendly interpretation of some of the detailed points in the Directive, and for any sanctions to be moderate. Nevertheless, businesses need to address the changes now, both to ensure their channels are compliant and to ensure that valuable customer databases are not rendered worthless for future campaigns. If you would like a more detailed analysis of how the new legislation will impact upon your business, please contact Marc Dautlich The information contained in this bulletin is intended as a general overview of the subjects featured and detailed specialist advice should always be taken before taking or refraining from taking any action.

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