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List businesses at risk from new prison penalties?

Some list businesses could be at risk if the two year prison sentence for illegal trading in personal data becomes law in April 2010. The Government is consulting on whether custodial penalties for Section 55 offences – where personal data is illegally sold – are appropriate. Strong lobbying from the ICO suggests that custodial sentences will be imposed.  As a result, list managers who do not protect themselves with cast iron contracts could be in the firing line.

The Section 55 offences include selling or offering for sale personal data without the consent of the data controller. The act of putting a list on the market would undoubtedly constitute “offering for sale”. A list manager who promotes data which has been unlawfully disclosed would therefore have to be able to show that he acted in the “reasonable belief” that he had the consent of the actual data controller. Given that lists sometimes come to market via complicated license and sub-license deals, this can be tricky.

Doing such deals without an auditable permission trail back to the data controller has always been ill-advised. Firm warranties from the original data controller (as well as clear evidence of compliance with the Fair Processing rules) should be a minimum requirement of any list management agreement.

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