Fax off. The PECR marketing privacy rules are different for e-mail

So the Information Commissioner has taken enforcement action against Ivor Cox, trading as Orion Forklift and Plant, following breaches of the Privacy and Electronic Communications Regulations (PECR). The action comes after more than 1700 complaints about the organisation were received by the Fax Preference Service (FPS) and by the ICO.

The complainants were blessed with unsolicited marketing faxes about Ivor’s forklift trucks, sometimes in the early hours of the morning, even when the recipient was registered with the FPS. Given that Ivor also faxed his missives to some individual’s home fax machines, I think he is lucky he did not also get an ASBO; it can be argued that the demand for “domestic” fork-lift truck services is obviously close to zero so it follows that his faxes constituted an anti-social nuisance.

And so far so good. However, if Ivor shifted his unsolicited marketing to e-mail he would find that the PECR regime would be different. Instead of sending a fax by fax, he can scan it in and send his unsolicited text as an attachment to business e-mail contacts extracted from the web. Under PECR, business contacts would not have the same ability to object.

The reason is that when the Government implemented PECR, it arranged for the “prior consent to unsolicited e-mail marketing” rules to apply only to individual subscribers. This means that e-mail marketing to most businesses and their employees requires no prior consent because, under PECR, it is the business that is the subscriber and not the individual employee.

Just to make this point clear. Most of the readers will have e-mail addresses from a corporate subscriber (e.g. [email protected] ; [email protected]) whereas their individual domestic subscriber e-mail would be of the form [email protected]. This means that a simple analysis of the various e-mail addresses would distinguish those belonging to likely "individual subscribers" from the rest.

So, if I want to complain about unsolicited marketing which involves my work e-mail address, I have use the data protection rules, but if my own personal domestic e-mail is involved, I have the protection of PECR’s consent rules.

This is far too complicated. I have never understood why the Government decided that, under PECR, spam sent to my work e-mail should be treated differently from spam sent to my e-mail address at home.

Comments

[Ian Brown]

Lobbying by spammers?

[Tim Trent]

The simple answer is that the half baked fools who drafted it failed to write it in Data Protection terms, but couched it in Telecommunications terms. That, to me, is a singular idiocy and worthy of firing the imbecilic mandarin who failed to understand the importance of lack of ambiguity.

And then the idiot MPs who gave it "voice" just did what they were told, which seems to be usual except where personal expenses are concerned.