ConLibs get shifty on spam and behavioural ads

Consultation shifty in the extreme


Last week, the government published its ideas as to how it would implement the changes to EU Directive 2002/58/EC. In relation to spammers and behavioural advertising it has decided to keep the low privacy standards that were acceptable to the previous New Labour government.

The changes discussed in the consultation (pdf) are modifications to Directive 2002/58/EC introduced by the need to implement Directive 2009/136/EC. These new provisions have to be brought into UK law by 25 May next year (and this accounts for the consultation process launched by the government last week).

One of the changes that you won’t find explained in the consultation document is the complete re-wording of Article 13 of Directive 2002/58/EC – a key Article which regulates all forms of electronic marketing including spam. The consultation ignores this complete redrafting and fails to discuss options that consequently arise.

For example, I think Article 13 allows Member States to introduce consent/opt-out requirements for all forms of electronic marketing including behavioural marketing. However, the drafting of Article 13 also allows a continuation of a minimum privacy protection policy with respect to the use of electronic marketing by organisations. The government could have chosen to debate options that included the former; instead it has chosen to keep quiet and give its support to the latter.

The argument for Article 13 providing further controls to protect browsing on the internet can be seen if you read the text carefully. For example, “electronic mail” is a defined term in the Directive to mean “any text, voice, sound or image message sent over a public communications network” directed to a "recipient". So when the term is not used in some of the marketing provisions (as in Article 13(3) of the Directive), one can make the inference that the provision is intended to apply to other forms of marketing that is not conveyed by “electronic mail”. The assumption being that if the text of the Directive wanted to limit the provision in Article 13(3) to “electronic mail” it would have been in the text.

Also note the use of the word "recipient". This refers to anybody (eg a "user" of the system) who receives a marketing message and includes a subscriber (who is likely to be identifiable because they pay the bills). Note also that "users" are more likely to be anonymous (as they just use the subscriber's system). Keep this distinction in mind for a moment - it is important!

Throughout Article 13 there is a conspicuous absence of the use of “personal data”, although obviously personal data are subject to the e-marketing rules (eg an email address is often personal data – chris.pounder@amberhawk.com). So where the term “personal data” is not used (as in Article 13), then provisions are clearly intended to apply in circumstances where other “data” (ie beyond the narrow confines of personal data) are processed for a marketing purpose. As behavioural marketing involves such “not personal data” (according to Google and other behavioural marketers – see documents), the Article clearly allows for member states to legislate for control over marketing that does not use personal data.

By contrast, the consultation states that the effect of the revised Article 13 is limited to “personal data”. This is because the consultation document requires that any “data” used to convey “electronic mail” has to relate to an “individual subscriber” and because of this, the data have to be “personal data”. Note also (as mentioned above) that in the Directive "electronic mail" is defined in terms of a "recipient"; a recipient includes the subscriber and any user of the subscriber's system. The consultation document in effect equates "recipient" with "subscriber" - which is not what the Directive says!

Similar topics


Other stories you might like

  • Euro-telcos call on big tech to help pay for their network builds

    Aka 'rebalancing global technology giants and the European digital ecosystem'

    The European Telecommunications Network Operators' Association (ETNO) has published a letter signed by ten telco CEOs that calls for, among other things, Big Tech to pay for their network builds.

    The letter, signed by the CEOs of the Vodafone Group, BT Group, Deutsche Telekom, Telefónica, Orange Group and five more telco leaders, calls for a "renewed effort to rebalance the relationship between global technology giants and the European digital ecosystem".

    "A large and increasing part of network traffic is generated and monetized by Big Tech platforms, but it requires continuous, intensive network investment and planning by the telecommunications sector," the letter states, adding "This model – which enables EU citizens to enjoy the fruits of the digital transformation – can only be sustainable if such platforms also contribute fairly to network costs."

    Continue reading
  • AI-enhanced frog stem cells start to replicate in entirely new ways

    Xenobots scoop up loose cells to make more of themselves. We welcome our new overlords

    In January of 2020, scientists from the University of Vermont announced they had built the first living robots; this week they have published reports that those robots, made from frog cells and called Xenobots, can reproduce and have found a new way to do so.

    The millimetre-sized xenobots are essentially a computer-designed collection of around 3,000 cells. They were created by taking stem cells from frog embryos, scraping them, leaving them to incubate, then cutting them open and sculpting them into specific shapes. After all that action, the cells began to work on their own – auto-repairing when sliced and moving about inside petri dishes.

    With a little design tweak, the creatures could do even more. "With the right design, they will spontaneously self-replicate," said University of Vermont researcher Joshua Bongard, Ph.D. in a canned statement.

    Continue reading
  • Panasonic admits intruders were inside its servers for months

    Spotted the crack after it ended – still not sure what was lost

    Japanese industrial giant Panasonic has admitted it's been popped, and badly.

    A November 26 statement [PDF] from the company admits that its network "was illegally accessed by a third party on November 11, 2021". That date has since been revised – the company now says it became aware of the intrusion on the 11th, but that unknown entities had access to its systems from late June to early November.

    "After detecting the unauthorized access, the company immediately reported the incident to the relevant authorities and implemented security countermeasures, including steps to prevent external access to the network," the statement adds.

    Continue reading

Biting the hand that feeds IT © 1998–2021