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Fair Obtaining
Innovations v The Data Protection Registrar

The case of Innovations (Mail-Order) Ltd v The Data Protection Registrar is one of the few cases which has come before the Data Protection Tribunal. Although it relates to the 1984 Data Protection Act, the principles remain sound under the new Act.

The first principle of data protection is the requirement that the user must obtain his information fairly. A failure to comply with one of the principles can lead to the Registrar serving an enforcement notice. This case was an appeal from one of the very few such notices issued under the old Act. The Tribunal proceeds by way of a re-hearing of the Registrar's decision.

The principle is stated to be 'the information to be contained in personal data shall be obtained, and have personal data shall be processed firmly and fairly' Provisions allow, when determining whether information was obtained fairly, to have regard to the method by which it was obtained, including in particular whether any person from whom it was obtained was deceived as to the purpose or purposes for which it is to be held, or disclosed"

Innovations conducted a mail order business, advertising through catalogues, press, television and radio. Innovations also sought to make money by providing lists of its customers, including names and addresses, to other companies who in turn used these details for direct marketing purposes.

Innovations placed everyone on their database. They were uncertain whether the customer had come to them through their catalogues or through press advertisements, radio or otherwise. Only the catalogues had any notification of the fact that the the customers name and address would be used in this way. The registrar took the view that the company was obtaining customer information unfairly. The question for the tribunal was whether fairness required the customer to be notified of the secondary uses which might be made of information provided. The court decided that the customer was to be notified, that it was insufficient to notifu customers of this intended use by means of the company's entry in the Data Protection Registry. Customers would only come to know of the use when they received their first mailing from a third party.

It came to be accepted by both parties that notification by the data protection register was not sufficient. It was argued that notification was not possible in many media such as radio and television. The company said that it had developed the practice of notifying the customer when it acknowledged the order. The notification also described to the customer how he might have his name taken off any such list.

Innovations referred to several other documents underlining the European approach to data protection. These included

  1. the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, opened for signature on 28 Jan 1991
  2. Recommendations are (85) 20 on the Protection of Personal Data used for the purposes of direct marketing
  3. the intended EC directive
  4. The Advertising Association Code of Practice covering the use of personal data for advertising and direct marketing
  5. The British code of advertising practice rules for direct marketing including list and database management calmer
  6. and the Direct Marketing Association code of practice

None of these documents had direct legal affect, but the tribunal had a discretion, it should look to what was recognised by these documents as proper practice. The Data Protection Act had its origins in the European convention, and in any case of ambiguity the tribunal could have regard to the convention for clarification.

In particular recommendations included the statement "it should be possible for marketing lists to be made available to third parties for direct marketing purposes provided that the data subject has been informed directly or by some other appropriate means at the time of the collection of the possibility of transmitting the data to third parties unless he has objected". Innovations argued that when the tribunal considered what was fairness in processing, they could look to these principles.

The tribunal hearing this important and direct handset four-star of "the week have reached a conclusion that of the words "fairly obtained" in the first data protection principle direct attention to the time of obtaining not to allay time" in the tribunal metaphor said that if the data user intends to trade in the names and addresses of customers, and that intention is not going to be obvious still the individual providing data and that individual must be told the intended uses before the information is obtained four-star of whether it is not possible, where for example existing names are to be used for new purpose, and the data user must obtained individuals consented to the nonobvious purpose at a later stage four-star of

The burning question is whether are not there was an implication that subsequent positive consent is required. A conclusion that it is necessary for the data user to make clear that the intended uses out of the time when the data on issues. A nut out of the company Culloden, in this situation, maintain surplus databases for customers who had not be notified of halfway possible secondary assist of the data. A simple flank attached to the database could be perfectly adequate for this purpose. The data is not out of disappointment to innovations, and that it should not proven unnecessarily difficult four-star of good asleep

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 http://www.swarb.co.uk/lawb/dpFairObtain.shtml 434 18 October 2013