Digital Economy Bill - direct marketing guidance and the Data Protection Act 1998

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Featuring in the final tranche of legislation pushed through parliament before its dissolution was the Digital Economy Bill, which received Royal Assent on 27 April 2017. The bill will become the Digital Economy Act 2017, which is set to come into force in May 2018.

The UK Government has produced a useful fact sheet about the key content and aims of the Bill (see here). Relevant to direct marketers in particular, is a lone provision within the Bill which amends the Data Protection Act 1998 (“DPA”) to include a statutory basis for a new direct marketing code. This code will sit alongside the current Data Sharing Code of Practice as a formal code supplementing the DPA.

As amended by the Digital Economy Act 2017, the DPA will oblige the Information Commissioner’s Office (“ICO”) to produce a direct marketing code which will be intended to give further colour on what constitutes ‘best practice’ for direct marketing activity. Like the Data Sharing Code of Practice, the direct marketing code will not impose any legal obligations on marketers or act as any definitive statement of the law. The DPA and its associated secondary legislation (e.g. the Privacy and Electronic Communications Regulations) will remain the statutory sources of data protection law in the UK (at least until the GDPR comes into force next year – see here for our overview). However, the new direct marketing code will be capable of being used as evidence in any legal proceedings (not just under the DPA) and the relevant forum hearing such proceedings must take the code into account when reaching its decision. 

There is already current guidance on direct marketing produced by the ICO, which acts as a guide to best practice for direct marketers. Before it produces the new direct marketing code, the ICO will be obliged to consult with industry stakeholders as to the content of the code, and we can expect to see formal communication from the ICO on this point in the near future, especially as the process has the potential to be further complicated by the GDPR coming into force at around the same time as the Digital Economy Act 2017. 

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Charles Maurice

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