Data Protected - United Kingdom
Last updated January 2024
General | Data Protection Laws
National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement
ePrivacy | Marketing and cookies
National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone
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General | Data Protection Laws
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National Legislation
Following the UK’s departure from the EU, the UK incorporated an amended version of the GDPR into UK law (“UK GDPR”).
The majority of the amendments were made under The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019. They make minimum changes necessary for the UK GDPR to continue to operate after Brexit, for example by removing references to participation in the European Data Protection Board, but do not otherwise affect the substantive obligations under that law.
Therefore, the summary below continues to refer to the position under the GDPR on the basis that, save to the extent indicated, the position is broadly the same under the UK GDPR.
The summary below also continues to refer to the European Data Protection Board’s guidance and to decisions of the CJEU. The UK Information Commissioner’s position is that guidance is no longer directly relevant to the UK and is not binding in the UK but, it might still provide helpful guidance on the UK GDPR. Similarly, the decision of the CJEU after 31 December 2020 are no longer binding in the UK but might still be persuasive.
The UK passed the Data Protection Act 2018 (“DPA 2018”) to help implement the GDPR. The DPA 2018 also implements the Law Enforcement Directive and imposes data protection obligations on the processing of personal data for national security purposes.
The UK has proposed significant, but not radical, amendments to UK data protection laws in its proposed Data Protection and Digital Information Bill. This only contains a handful of major changes, such as loosening the rules on cookies, allowing greater use of automated decision making and replacing data protection officers with “senior responsible individuals. The UK Government has also passed the Data Protection (Fundamental Rights and Freedoms)(Amendment) Regulations 2023. This will amend the UK GDPR so that it no longer protects personal data as a “fundamental right” per se, but rather only as a right within the meaning of the ECHR. Further details about the divergence between UK and EU data protection laws can be found here.
Entry into force
The GDPR has applied since 25 May 2018.
The UK GDPR replaced the GDPR on 31 December 2020. The majority of the DPA 2018 came into force on 25 May 2018.
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National Supervisory Authority
Details of the competent national supervisory authority
The Information Commissioner acts as the supervisory authority in the UK.
The Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
United Kingdom
Following the UK’s departure from the EU, the UK Information Commissioner no longer participates in the European Data Protection Board.
Notification or registration scheme and timing
There is no obligation to notify regulators of any processing under the GDPR. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions).
In the UK, regulations have been introduced to require controllers to pay charges to the Information Commissioner to help fund his office. Those charges are either £40, £60 or £2,900 depending on the size and nature of the controller’s business. There are some limited exemptions to this obligation to pay charges.
Exemptions to notification
Not applicable.
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Scope of Application
What is the territorial scope of application?
The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.
It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.
The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).
The UK GDPR applies a similar territorial test, save that references to the EU have been replaced with references to the UK.
Is there a concept of a controller and a processor?
Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.
The European Data Protection Board has issued Guidelines on the concepts of controller and processor in the GDPR (7/2020).
Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited.
Are both manual and electronic records subject to data protection legislation?
Yes. The GDPR applies to both electronic records and structured hard copy records.
Are there any national derogations?
The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.
The DPA 2018 contains a large number of additional national derogations, including for journalism, prevention of crime, collection of taxation, immigration control and legal proceedings.
The DPA 2018 also implements the Law Enforcement Directive and imposes data protection obligations on the processing of personal data for national security purposes.
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Personal Data
What is personal data?
Personal data is information relating to an identified or identifiable natural person.
This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as cookies.
Is information about legal entities personal data?
No. However, information about sole traders and partnerships is likely to be personal data.
What are the rules for processing personal data?
All processing of personal data must comply with all six general data quality principles. Personal data must be: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) kept secure.
The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or a third party's legitimate interests, except where overridden by the interests or fundamental rights and freedoms of the data subject.
These rules are almost identical to the core requirements for processing personal data in the old Data Protection Directive. The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019).
Are there any formalities to obtain consent to process personal data?
The requirements for consent under the GDPR are strict.
To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.
In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials.
The Article 29 Working Party has issued Guidelines on Consent (WP259).
Are there any special rules when processing personal data about children?
Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.
The DPA 2018 has reduced the age at which a child can provide a valid consent to online services to 13 years old. No age limit applies if the processing is for the purposes of preventative and counselling services.
The Information Commissioner has issued the Age Appropriate Design Code (also known as the Children’s Code) which contains a number of very stringent requirements when processing personal data about children in an online environment. The Code came into force in September 2021.
Are there any special rules when processing personal data about employees?
The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law.
The UK has not implemented detailed rules regarding the processing of personal data about employees. However, it has made it a criminal offence to require an individual to make a subject access request to obtain their records in the context of recruitment. The UK has separate laws regulating employers’ access to the criminal records of their employees or applicants.
The Information Commissioner previously issued an Employment Practices Code setting out how data protection law applies to information about employees and is consulting on updates to that code in light of the GDPR.
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Sensitive Personal Data
What is sensitive personal data?
Special category data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation. The decision in OT (C-184/20) might suggest this should be interpreted broadly to include publication of information that indirectly discloses these characteristics.
The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.
Are there additional rules for processing sensitive personal data?
Special category data may only be processed if a condition for processing special category data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the fields of employment, social security and social protection law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.
The DPA 2018 provides further clarity about when this processing is permitted. In particular, it sets out specific processing conditions that will permit processing in a wide range of situations such as for the purposes of equal opportunities, insurance, research, political parties, the prevention of unlawful acts or dishonesty, and the provision of pensions. In many cases, a controller must prepare an “appropriate policy” if it relies on one of these conditions to process sensitive personal data.
Are there additional rules for processing information about criminal offences?
It is only possible to process personal data relating to criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.
The DPA 2018 allows the processing of information about criminal offences in broadly similar situations to those in which special category data can be processed. This includes processing with the consent of the individual.
Are there any formalities to obtain consent to process sensitive personal data?
Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.
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Data Protection Officers
When must a data protection officer be appointed?
Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).
Data protection officers must also be appointed where required by national law. However, the DPA 2018 does not impose any additional obligations to appoint a data protection officer (save in respect of processing under the implementation of the Law Enforcement Directive).
What are the duties of a data protection officer?
The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. Details of the data protection officer must be communicated to the relevant supervisory authority.
The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).
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Accountability and Privacy Impact Assessments
Is there a general accountability obligation?
The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.
Are privacy impact assessments mandatory?
A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.
The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above.
In the UK, the Information Commissioner has drawn up a list of “high risk processing”, available here. It includes activities such as data matching and artificial intelligence.
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Rights of Data Subjects
Privacy notices
A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.
The Article 29 Working Party has issued Guidelines on Transparency (WP260).
In the UK, there is no obligation to provide this information in English, though it may be difficult to show that the information has been fairly provided if it is not in a language the data subject is familiar with.
The DPA 2018 contains a wide range of exemptions to the obligation to provide privacy notices and to comply with other rights of data subjects. For example, exemptions apply where the personal data is privileged, compliance would prejudice the prevention or detection of crime or would interfere with certain corporate finance activities.
Rights to access information
Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The right to obtain a copy of personal data should not adversely affect the rights and freedoms of others. The response must be provided within a month, though this can be extended by two months if the request is complex.
The European Data Protection Board has issued Guidelines on rights of access (1/2022).
Not all aspects of the European Data Protection Board’s guidance are likely to apply in the UK. In particular, there is clear English law authority that it is only necessary to conduct a “reasonable and proportionate” search in response to a subject access request.
The DPA 2018 also contains a wide range of exemptions to the obligation to respond to subject access requests for example where the information is protected by privilege or, in certain cases, would disclose personal data about other data subjects.
Rights to data portability
Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.
The Article 29 Working Party has issued Guidelines on data portability (WP242).
The DPA 2018 contains a number of exemptions to the obligation to provide data portability.
Right to be forgotten
A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are a range of exemptions, for example where there is a legal obligation to retain the data.
The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).
The DPA 2018 contains a number of exemptions to the right to erasure.
Objection to direct marketing
A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.
Other rights
The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.
Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).
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Security
Security requirements in order to protect personal data
The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.
In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Specific rules governing processing by third party agents (processors)
A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.
The controller must have written contracts with its processor containing the enhanced processor clauses.
Notice of breach laws
A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.
Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.
The European Data Protection Board has issued Guidelines on Personal Data Breach Notification (9/2022) and Examples regarding Personal Data Breach Notification (1/2021).
In the UK, the obligations in the Network and Information Systems Directive continues to apply as they have been implemented as a UK regulation that has not be repealed following the UK’s departure from the EU. In addition, controllers in certain sectors may be required to inform sectoral regulators of any breach (for example, financial services firms may be required to inform the Financial Conduct Authority of any breach).
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Transfer of Personal Data to Third Countries
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. These restrictions do not apply if the transfer is to a whitelisted country.
A transfer can take place if it: (i) is made pursuant to a set of Standard Contractual Clauses; (ii) is made pursuant to binding corporate rules; (iii) is made to an importer who has signed up to an approved code or obtained an approved certification; or (iv) is otherwise approved by the relevant supervisory authority. However, following the decision in Schrems II (C-311/18), any transfer made on this basis must be subject to a transfer impact assessment of the laws of the relevant third country and supplemented by supplementary protections where necessary.
The European Data Protection Board has issued Recommendation on European Essential Guarantees for surveillance measures (2/2020) and a Recommendation on measures that supplement transfer tools (1/2020) to help conduct this transfer impact assessment. The European Commission has also issued an FAQ on the new Standard Contractual Clauses.
Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.
The position is broadly the same as under the old Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.
The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018). Finally, the European Data Protection Board has issued draft Guidelines on the interplay between Article 3 and international transfers (2/2018) to help identify when a transfer takes place.
Following the end of the transition period, the rules on transborder dataflow apply to any transfer of personal data outside the UK. However, the UK has recognised the EEA jurisdictions as providing adequate protection (and vice versa) and has grandfathered the existing adequacy findings for whitelisted countries. It has also matched the EU’s finding that Korea is an adequate jurisdiction
The UK has recognised the EU’s new Standard Contractual Clauses (so long as they are used in conjunction with a UK Addendum) and has adopted its own version of the Standard Contractual Clauses, known as the International Data Transfer Agreement.
The UK Information Commissioner has issued his own guidance on transborder dataflow.
Notification and approval of national regulator (including notification of use of Standard Contractual Clauses)
In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer.
For example, there will be no obligation to get approval for the use of Standard Contractual Clauses (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.
Use of binding corporate rules
The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.
In the UK, the Information Commissioner has approved binding corporate rules from a number of organisations, including Linklaters LLP. Where EU binding corporate rules have been obtained it is possible to get UK approval for them by using the UK BCR Addendum.
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Enforcement
Fines
The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.
A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.
Fines can only be imposed where there is an intentional or negligent infringement of the GDPR, see Deutsche Wohnen (C-807/21).
The EDPB has published Guidelines on the calculation of administrative fines (04/2022).
The DPA 2018 gives the Information Commissioner the ability to issue administrative fines by serving a Penalty Notice. The fixed figure for fines has been amended to be £17.5m (in place of €20m) and £8.7m (in place of €10m).
Imprisonment
The DPA 2018 makes it a criminal offence to: (i) unlawfully obtain personal data; (ii) alter records to prevent disclosure in response to a subject access request; (iii) intentionally or recklessly re-identify individuals from anonymised or pseudonymised data; or (iv) require individuals to make a subject access request for health or criminal record information in certain circumstances. Finally, there are also a number of offences for obstructing an investigation by the Information Commissioner.
Under the DPA 2018, directors, managers and similar officers are liable for offences committed by a company as a result of their consent, connivance or neglect.
However, none of these offences are punishable by imprisonment.
Compensation
Data subjects have a right to compensation in respect of material and non-material damage. This requires more than a mere infringement of the GDPR and there must be actual material or non-material damage, however there is no minimum threshold of seriousness before compensation is available, see Österreichische Post (C-300/21).
The UK courts have previously suggested there should be a minimum level of seriousness for compensation claims (Lloyd v Google [2021] UKSC 50) so may diverge from the EU on this issue.
Other powers
Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing.
The DPA 2018 gives the Information Commissioner the ability to exercise these powers through Information Notices, Assessment Notices and Enforcement Notices. The Information Commissioner can also issue reprimands using powers under the UK GDPR.
Practice
Fines: The Information Commissioner has only issued nine fines under the GDPR and UK GDPR. The most significant fines were:
- British Airways, who were fined £20 million following a cyber-attack on their information technology systems. The Information Commissioner originally proposed a fine of £184 million but that was reduced following representations from the company.
- Marriott, who were fined £18.4 million following a cyber-attack on their information technology systems. The Information Commissioner originally proposed a fine of £99 million but that was reduced following representations from the company.
- TikTok, who were fined £12.7 million for allegedly not taking sufficient measures to block children under 13 accessing the TikTok service. The fine is subject to appeal.
- Clearview AI, who were fined £7.5 million for unlawfully operating a facial recognition system using images scraped from the internet relating to UK residents. The Information Commissioner concluded there were multiple breaches including the lack of a legal basis for the processing and a failure to provide sufficient transparency. Clearview AI is based in the US but the Information Commissioner decided that the UK GDPR applied as the scraping process resulted in Clearview AI monitoring the behaviour of individuals in the UK. The fine is subject to appeal.
General enforcement action: During 2023, the Information Commission issued: (a) 34 reprimands; (b) 17 Enforcement Notices; (c) two fines for breach of the GDPR; (d) 17 fines for breach of the electronic marketing rules in PECR; and (e) four prosecutions.
The 2022/2023 Annual Report states the number of data protection complaints received by the Information Commissioner has decreased. In 2022/2023, the number of complaints under the UK GDPR fell to 33,753 (compared to 36,343 in 2021/2022). He also received 50,954 complaints about electronic direct marketing in 2022/2023 (which is a significant reduction to the 105,438 complaints received in 2011/2022).
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ePrivacy | Marketing and cookies
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National Legislation
ePrivacy laws
The Privacy and Electronic Communications (EC Directive) Regulations 2003 (the “PECR”) which implement the Privacy and Electronic Communications Directive. These regulations came into force on 11 December 2003.
The PECR was amended on 26 May 2011 to implement the amendments to the Privacy and Electronic Communications Directive.
There were very limited changes to these laws as a result of the UK leaving the EU. However, the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 confirm that consent under the PECR must meet the consent standards under the GDPR. As set out above, the UK Government intends to make further changes (particularly to the cookie rules) through the Data Protection and Digital Information Bill.
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Cookies
Conditions for use of cookies
Consent is needed for the use of cookies unless the cookie is: (i) strictly necessary for the provision of a service to that subscriber or user; or (ii) for the sole purpose of a transmission of a communication.
The PECR expressly states that consent can be given through browser settings, though no such browser settings have been found to provide this consent as yet.
Regulatory guidance on the use of cookies
The Information Commissioner has issued guidance on cookies (here). That guidance made it clear that: (a) implied consent is not sufficient and so continuing to use a website is not sufficient to constitute consent; (b) consent must be obtained before cookies are set; (c) the class of “strictly necessary” cookies is limited and, for example, does not include persistent authentication cookies.
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Marketing by E-mail
Conditions for direct marketing by e-mail to individual subscribers
It is only possible to send direct marketing e-mails to individual subscribers if they consent.
Conditions for direct marketing by e-mail to corporate subscribers
The restrictions on e-mail marketing in the PECR do not apply to corporate subscribers (including individuals at corporates).
Exemptions and other issues
It is permitted to send e-mails for the purposes of direct marketing if the similar products and services exemption applies. For this exemption to apply the recipient’s details only need to have been collected in connection with the sale or negotiation for sale of products and services. There is no need for an actual contract to have been formed.
The PECR also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; or (ii) if an opt-out address is not provided. The sender must also include the eCommerce information.
Directors and other officers can be fined in certain cases where a breach of these rules arises from their consent, connivance or neglect.
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Marketing by Telephone
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
It is not permitted to make direct marketing calls to individual subscribers who have either: (i) previously objected to such calls; or (ii) are listed on the Telephone Preference Service.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
It is not permitted to make direct marketing calls to corporate subscribers who have either: (i) previously objected to such calls; or (ii) are listed on the Telephone Preference Service.
Exemptions and other issues
Calls can be made to a subscriber on the Telephone Preference Service if they have consented to receiving such calls. The recipient should be told the name of the person responsible for the direct marketing call and, on request, an address or telephone number where he can be reached free of charge. When making a direct marketing call you must either not hide the calling number or present a number where you can be contacted.
Additional restrictions apply to marketing calls made by claims management companies or in relation to pension schemes.
Directors and other officers can be fined in certain cases where a breach of these rules arises from their consent, connivance or neglect.
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