Data Protection Act could restrict marketing through telecoms firms

Data Protection Act could restrict marketing through telecoms firms

Senior staff reporter

Thursday, December 05, 2019

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TELECOMS providers and other entities could find it harder to push their products to potential customers if the parliamentary committee which is reviewing the Data Protection Act agrees to include a provision for companies to ask permission to send such messages.

The Ministry of Science, Energy and Technology (MSET) is against the inclusion of the proposal, recommended by the Jamaican Bar Association, but the joint select committee, which is examining the Bill, is leaning towards including an opt-in choice.

The bar association says there should be a provision for explicit consent in relation to data controllers who operate websites and that persons should be given the opportunity to consent to being a part of call or e-mail lists before they receive information from marketers of products and services.

At yesterday's meeting of the committee, principal director at MSET, Kaydian Smith Newton noted that large telecoms providers had expressed concern that another clause in the Act already restricts their ability to market to their existing customers.

She pointed out that presently there is an opt-out regime in the Electronic Transaction Bill and that the ministry maintains that Jamaica should retain an opt-out regime.

Smith Newton said Clause 11 of the Bill already provides protection to consumers for e-mail and call lists, and that the ministry would not recommend creating a regime that is contrary to the Electronic Transactions Act.

“The direct marketing provisions of the (Data Protection) Bill are already onerous and to add an opt-in regime would make it even more adverse,” she said.

But Government Senator Robert Morgan argued that focus should remain on protecting consumers, and not the business interests of corporations and telecoms companies.

“My concern is not the interest of the corporation; the consumer is entitled to the protection of their data, regardless of what are the economic incentives or obligations that exist in a particular economy,” Morgan stated.

He further argued that, “Why is it that you are recommending that we allow telemarketing companies to take my information and push ads to me without consent, and then put the onus on consumers, who are, in many cases, of varying abilities and competencies to navigate these clauses. If you're going to really give people control of their data no one should be allowed to use their data without their permission.”

Opposition spokesman on technology Julian Robinson agreed with the concern, insisting that consumers should be given the choice to determine whether they want to be bombarded with messages. “What happens now is that without your knowledge or consent, your numbers are shared with third parties. I feel strongly that it should be the other way around; consumers should be given the option to opt-in, otherwise their data shouldn't be shared or (messages) sent to them.”

Another Opposition Member of Parliament Mark Golding pointed to the European Union U's 2016 General Data Protection Regulation (GDPR), which also addresses the transfer of personal data outside the EU and EEA areas.

He argued that given that a modern system such as this provides for an opt-in regime, he would support this option. “What I didn't want was a situation where Jamaica is going it alone in an opt-in scheme. I was mindful of the impact on small firms here that are seeking to use the Internet to expand and find that they are constrained by our law to comply with an onerous system to get access to markets regionally and internationally.

“I understand that the purpose of this is to protect consumers but, at the same time, we don't want to disadvantage our economy. So if the trend is going towards opt-in, I would support it.”

Smith Newton said the ministry would examine the concerns raised about impact on citizens, against the possible fall-out to small businesses. She also explained that under the Electronic Transactions Act a person who sends unsolicited commercial communication must give the consumer the opportunity to decline to receive such information.

Golding, at the same time, said the provision in the companion legislation should not be constrained to unsolicited commercial communication. He said given the reliance on that provision in the Electronic Transaction Bill, to justify not amending the Data Protection Act, the Electronic Transaction Bill needs to be more robust.

“Not all unwanted communications are trying to sell you something [as] sometimes it's just marketing their existence, but it's still something you want to be able to unsubscribe from. If some kind of organisation is trying to sell some point of view, why should they not be forced to give you the ability to opt out,” he stated.

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