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News in brief

Sensitive Personal Data

The European Commission’s Article 29 Data Protection Working Party has adopted a working document on the processing of personal data relating to health in electronic health records (EHR). This document is aimed at providing guidance on the interpretation of data protection provisions in relation to EHR systems and makes recommendations for special safeguards within those systems. Personal data relating to an individual’s
health are among the most sensitive of personal data and patients, while welcoming the flexibility that such systems could provide, have expressed grave concerns about the security and reliability of such systems, in particular accessibility to the data by unauthorised people.

The Working Party’s timely reminder of the importance of adequate safeguards echoes the Information Commissioner’s insistence on data protection measures being “embedded” in any new technology. It is clearly important to ensure that data protection measures keep apace with technology and that flexibility is not provided at the cost of security and confidentiality.

Direct Marketing

The Advertising Standards Authority (ASA) has upheld a complaint concerning an opt-out statement in a promotional text message. The CAP code on advertising practice is maintained by ASA and includes a provision prohibiting sending marketing messages to a consumer by email or to mobiles without the consumer’s explicit consent. The exception to this is where (a) that consumer’s details have been previously obtained in sale negotiations relating to similar products and (b) provided that the consumer was informed that he could opt out at any stage in the future from receiving marketing communications, (c) the consumer was provided with the means by which to do so, and (d) is reminded of that right and those means on each occasion a marketing communication is sent.This is sometimes known as the Licences of right limited opt-out right. On the facts, the limited opt-out right applied, however the reference in the text message to “opt-out available” was not sufficient for the advertiser to discharge its obligations under the CAP Code since the message did not give recipients a clear or simple means of opting out of receiving future messages. A postal or email address or a short code number to which recipients could send an opt-out message would have been sufficient. The decision shows that the CAP Code does in general apply to direct marketing by SMS and the fact that standard mobile phone screens have practical limitations does not mean that the Code can be ignored. Advertisers using texting should therefore ensure they are familiar with the provisions of the Code and, where the limited opt-out right is available, provide a clear means by which recipients can opt out of receiving future marketing messages, on each occasion when a marketing text is sent. Digital Scientific Publishing The European Commission has published a communication on the digital publishing of scientific information which examines how access to scientific information in the digital age can be improved, and how digital scientific information can be kept accessible to and usable by future generations. In this context, the communication looks at how scientific information has historically been disseminated, how digital technologies are leading to more “open access” publishing and publishing models, and the legal issues associated with this. It will not be easy to get consent between the different bodies on some of the issues raised, since there is tension between the different goals of scientists, publishers and libraries. However, the Commission has tried to strike a balance through its objective of securing wide access to scientific information whilst rewarding investments in scientific publishing. It will be interesting to see how the different interest groups react to the communication and how quickly progress is made on the core issues.

For further enquiries please contact Genevieve Mead on 01892 701308 or email genevieve.mead@
ts-p.co.uk.

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