The Telecommunications (Data Protection and Privacy) Regulations 1999

Regulation 3(2) and (3)

SCHEDULE 1AMENDMENTS

PART IAMENDMENT OF THE TELECOMMUNICATIONS (DATA PROTECTION AND PRIVACY) (DIRECT MARKETING) REGULATIONS 1998

At the end of regulation 10 of the Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998(1) (notifications for purposes of regulation 7(4)(a) or 9(4)(a) thereof) there shall be added the two following paragraphs:–

“(5) Where the number, in respect of a particular line, allocated to a subscriber who is an individual was, immediately before 1st May 1999, included in the list of numbers mentioned in paragraph (6), then, for the purposes of regulation 9(4)(a), that subscriber shall, as respects that line, be deemed to have notified the Director as mentioned therein, and that notification may be withdrawn by him as though it were a notification actually given.

(6) The list referred to in paragraph (5) is the list kept before 1st May 1999 by the Direct Marketing Association (UK) Ltd for the purposes of the extra-statutory scheme then operated by it which was known as “the Telephone Preference Scheme.”.”

PART IIINCIDENTAL AND CONSEQUENTIAL AMENDMENTS

The Telecommunications Act 1984

1.  In section 1(6) of the Act of 1984(2) (payment out of money provided by Parliament) for the words following “by any of his staff” there shall be substituted the following words–

• “in consequence of the provisions of–

  (a)

  this Act;

  (b)

  the Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998; or

  (c)

  the Telecommunications (Data Protection and Privacy) Regulations 1999.”.

2.  At the end of section 7(5)(a) of the Act of 1984 (power to license systems) there shall be added the words “or by regulation 30 of the Telecommunications (Data Protection and Privacy) Regulations 1999.”.

The Data Protection Act 1998

3.  In section 11 of the Data Protection Act 1998 (right to prevent processing for purposes of direct marketing), after subsection (2) there shall be inserted the following subsection–

“(2A) This section shall not apply in relation to the processing of such data as are mentioned in paragraph (1) of regulation 8 of the Telecommunications (Data Protection and Privacy) Regulations 1999 (processing of telecommunications billing data for certain marketing purposes) for the purposes mentioned in paragraph (2) of that regulation.”.

The Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998

4.  In regulation 2(1) of the Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998(3) (interpretation), for the definitions of “Data Protection Registrar” and of “relevant data protection legislation” there shall be substituted, respectively, the following definitions–

““Data Protection Commissioner” means the Commissioner appointed under section 6 of the Data Protection Act 1998;”;

““relevant data protection legislation” means the Data Protection Act 1998, the instruments from time to time in force thereunder and the Telecommunications (Data Protection and Privacy) Regulations 1999;”.

5.  In regulation 10 of the said Regulations (directory services—systemless providers), both in paragraph (8)(a) and in paragraph (9), for the words “Data Protection Registrar” there shall be substituted the words “Data Protection Commissioner” and at the end of the said regulation there shall be added the following paragraph–

“(10) For the purposes of paragraphs (8)(a) and (9) above, anything done before the commencement of section 6(1) of the Data Protection Act 1998 by the Data Protection Registrar appointed under section 3 of the Data Protection Act 1984 shall be treated as if it had been done by the Data Protection Commissioner.”.

6.  In regulation 21(6)(b)(iii) of the said Regulations (conditions of access and use and essential requirements), for the words “imposed only in accordance” there shall be substituted the word “compatible”.

Regulations 7(1) and 8(1)

SCHEDULE 2DATA REFERRED TO IN REGULATIONS 7 AND 8

1.  The data referred to in regulations 7(1) and 8(1) are data which constitute personal data whereof the data subject is a subscriber to, or user of, any publicly available telecommunications service or, in the case of a corporate subscriber, would constitute such data if that subscriber were an individual, and which comprise information in respect of all or any of the following matters, namely–

(a)the number or other identification of the subscriber’s station;

(b)the subscriber’s address and the type of the station;

(c)the total number of units of use by reference to which the sum payable in respect of an accounting period is calculated;

(d)the type, starting time and duration of calls and the volume of data transmissions in respect of which sums are payable by the subscriber and the numbers or other identification of the stations to which they were made;

(e)the date of the provision of any service not falling within sub-paragraph (d); and

(f)other matters concerning payments including, in particular, advance payments, payments by instalments, reminders and disconnections.

2.  The reference in paragraph 1(c) to an accounting period is, in relation to sums of any description payable to a telecommunications network provider or a telecommunications service provider, a reference to a period in respect of which the relevant person normally sends out bills for sums of that description payable to him.

Regulation 34

SCHEDULE 3TRANSITORY AND TRANSITIONAL PROVISIONS

Provisions relating to regulation 8

1.—(1) For the purposes of this paragraph, such data as are mentioned in paragraph (1) of regulation 8 are eligible data at any time if, and to the extent that, they are at that time subject to processing which was already under way immediately before 1st March 2000 being processing by a telecommunications service provider for the purposes of marketing telecommunications services provided by him (“the existing processing”).

(2) This paragraph shall apply where the telecommunications service provider concerned has given a subscriber written notice of the existing processing and of the effect of this paragraph (“a notified subscriber”).

(3) Subject as hereinafter provided, for the purposes of regulation 8(2) in relation to the continued processing of eligible data which constitute personal data whereof the data subject is a notified subscriber, or, in the case of a notified corporate subscriber, would constitute such data if that subscriber were an individual, the notified subscriber shall be deemed to have given his consent.

(4) If, within 2 months of a notified subscriber having been given the notice referred to in sub-paragraph (2), he expresses his dissent by written notice given to the telecommunications service provider concerned, then, in the case of that subscriber, the provider concerned shall cease, as soon as is reasonably practicable, the continued processing of eligible data in pursuance of sub-paragraph (3).

(5) Without prejudice to sub-paragraph (4), where a notified subscriber is deemed to have given his consent for the purposes of regulation 7(2), that consent may be withdrawn by him as though it were a consent actually given.

Provision relating to Part IV

2.  Part IV shall not apply in relation to such a directory as is mentioned in regulation 17(1) which is comprised in an edition first published before 1st March 2000.

Provisions relating to Part V

3.—(1) Where, immediately before 1st March 2000, the number, in respect of a particular line, allocated to a subscriber who is an individual, was listed in the record kept under regulation 9(4)(a) of the Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998(4) by reason only of regulation 10(5) of those Regulations(5), then, for the purposes of regulation 25(4)(a) of these Regulations, that subscriber shall, as respects that line, be deemed to have notified the Director as mentioned in the said regulation 25(4)(a), and that notification may be withdrawn by him as though it were a notification actually given.

(2) The reference in regulation 27(4) to the record kept under paragraph (4) of the regulation in question, that is to say regulation 23 or 25, shall be construed, in relation to a time before 1st March 2000, as a reference to the record kept under paragraph (4) of the corresponding regulation of the Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998, that is to say regulation 7 or 9 thereof.

(3) The provisions of this paragraph are without prejudice to those of section 17(2) of the Interpretation Act 1978(6).

Provisions relating to enforcement etc

4.—(1) This paragraph shall apply in relation to enforcement notices under section 10 of the Data Protection Act 1984 as applied by regulation 13(1) of the Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998; and nothing in paragraph 7 of Schedule 14 to the Data Protection Act 1998 shall apply in relation to such notices.

(2) If, immediately before 1st March 2000–

(a)such an enforcement notice has effect, and

(b)either the time for appealing against the notice has expired or any appeal has been determined,

then the notice shall have effect for the purposes of sections 41 and 47 of the Data Protection Act 1998 as if it were an enforcement notice under section 40 thereof as extended by regulation 36(1) of these Regulations.

(3) Where such an enforcement notice has been served and, immediately before 1st March 2000–

(a)the time for appealing against the notice has not expired, or

(b)an appeal has not been determined,

any appeal shall be determined in accordance with the provisions of the Data Protection Act 1984 and, unless the notice is quashed on appeal, the notice shall have effect for the purposes of sections 41 and 47 of the Data Protection Act 1998 as if it were an enforcement notice under section 40 thereof as extended as aforesaid.

5.—(1) Part VII of these Regulations shall have effect as if any reference therein to these Regulations included a reference to the Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998.

(2) Sections 40, 41 and 43 of the Data Protection Act 1998, as extended by regulation 36(1) of these Regulations, shall have effect as if any reference therein to these Regulations included a reference to the Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998 and, accordingly, as if any reference therein to a relevant requirement included a reference to a requirement of the said Regulations of 1998.

(3) Schedule 9 to the said Act of 1998, as extended as aforesaid, shall have effect as if any reference therein to these Regulations (including a reference to “the 1999 Regulations”) included a reference to the Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998.

Regulation 36(1)

SCHEDULE 4MODIFICATIONS TO PART V OF THE DATA PROTECTION ACT 1998 AND SCHEDULES 6 AND 9 THERETO AS EXTENDED BY REGULATION 36

1.  In section 40–

(a)in subsection (1), for the words “data controller” there shall be substituted the word “person”, for the words “data protection principles” there shall be substituted the words “requirements of the Telecommunications (Data Protection and Privacy) Regulations 1999 (in this Part referred to as “the relevant requirements”)” and for the words “principle or principles” there shall be substituted the words “requirement or requirements”;

(b)in subsection (2), the words “or distress” shall be omitted;

(c)subsections (3), (4), (5), (9) and (10) shall be omitted; and

(d)in subsection (6)(a), for the words “data protection principle or principles” there shall be substituted the words “relevant requirement or requirements”.

2.  In section 41, for the words “data protection principle or principles”, in both places where they occur, there shall be substituted the words “relevant requirement or requirements”.

3.  Section 42 shall be omitted.

4.  In section 43–

(a)for subsections (1) and (2) there shall be substituted the following provisions–

“(1) If the Commissioner reasonably requires any information for the purpose of determining whether a person has complied or is complying with the relevant requirements, he may serve that person with a notice (in this Act referred to as “an information notice”) requiring him, within such time as is specified in the notice, to furnish the Commissioner, in such form as may be so specified, with such information relating to compliance with the relevant requirements as is so specified.

(2) An information notice must contain a statement that the Commissioner regards the specified information as relevant for the purpose of determining whether the person has complied, or is complying, with the relevant requirements and his reason for regarding it as relevant for that purpose.”;

(b)in subsection (6)(a), after the word “under” there shall be inserted the words “the Telecommunications (Data Protection and Privacy) Regulations 1999 or”;

(c)in subsection (6)(b), after the words “arising out of” there shall be inserted the words “the said Regulations or”; and

(d)subsection (10) shall be omitted.

5.  Sections 44, 45 and 46 shall be omitted.

6.  In section 47(1) and (2), for the words “an information notice or a special information notice”, in both places where they occur, there shall be substituted the words “or an information notice”.

7.  In section 48–

(a)in subsections (1) and (3), for the words “an information notice or a special information notice”, in both places where they occur, there shall be substituted the words “or an information notice”;

(b)in subsection (3) for the words “43(5) or 44(6)” there shall be substituted the words “or 43(5)”; and

(c)subsection (4) shall be omitted.

8.  In section 49, subsection (5) shall be omitted.

9.  In paragraph 4(1) of Schedule 6, for the words “(2) or (4)” there shall be substituted the words “or (2)”.

10.  In paragraph 1 of Schedule 9–

(a)for sub-paragraph (1)(a) there shall be substituted the following provision–

“(a)that a person has contravened or is contravening any of the requirements of the Telecommunications (Data Protection and Privacy) Regulations 1999 (in this Schedule referred to as “the 1999 Regulations”), or”, and

(b)sub-paragraph (2) shall be omitted.

11.  In paragraph 9 of Schedule 9–

(a)in sub-paragraph (1)(a), after the words “rights under” there shall be inserted the words “the 1999 Regulations or”, and

(b)in sub-paragraph (1)(b), after the words “arising out of” there shall be inserted the words “the 1999 Regulations or”.