Just when we thought the GDPR and Brexit were giving us enough of a challenge in relation to changes in data protection legislation, we introduce you to…..The Digital Economy Act 2017 (the Act) which received Royal Assent on 27th April 2017.
What is the Digital Economy Act?
It is fair to say that the Act is a mixed bag of legislation. It amends various pieces of existing legislation including in relation to copyright and data protection as well as introducing new legislation, for example in relation to secondary ticketing (see here).
What is the effect on data protection legislation?
The Act introduces a number of changes to existing data protection legislation in the UK including permitting the sharing of information (including personal information) between certain pubic authorities in order improve service delivery, reduce debt, combat fraud and for the purposes of research. The most important change for marketers however, is that the ICO must produce a code of practice on direct marketing which will be given statutory status.
Direct marketing code of practice
The Act contains provisions which are due to come into effect on 27th June 2017 that require the ICO to publish a statutory code of practice on direct marketing. In order for the code to carry statutory status it needs to be implemented in accordance with the Act. This means that certain stakeholders must be consulted prior to it being drafted and the final draft needs to be laid before parliament (once we have one!). If neither Houses of Parliament reject the draft code, the ICO can go ahead and issue it as statutory guidance under the Act.
It is not yet clear what the ICO intends to do with its current (non-statutory) guidance on direct marketing but, given the requirements it needs to comply with under the Act, it is likely that it will start by consulting various stakeholders on possible changes/additions to its existing guidance. In the meantime, companies should continue following the ICO’s current guidance as well as any other relevant guidance such as the DMA code.
The effect of the statutory code of practice is that it is admissible in evidence and must now be taken into account by the ICO in exercising its duties, and by courts and tribunals in any relevant proceedings.