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On 1 July 2011 the Data Protection Commissioner (the
"Commissioner") issued a Guidance Note to assist
organisations comply with new data protection requirements in
relation to electronic communications and networks following the
commencement of the European Communities (Electronic Communications
Networks and Services) (Privacy and Electronic Communications)
Regulations, 2011 (the "Regulations") which transpose the
ePrivacy Directive.
Key requirements which have been introduced include the
following:-
compulsory notification of data breaches by all
telecommunication companies and internet service providers to the
Office of the Data Protection Commissioner and notification of
customers where there is a risk their data may be accessed. Failure
to do so can lead to prosecution by the Commissioner and a possible
fine of up to €5,000 per instance. The Commissioner can
also, for the first time, prosecute such companies for allowing a
data breach, which upon conviction on indictment attracts a fine of
up to €250,000;
more stringent requirements for all companies relating to the
provision of information and obtaining the consent of users for the
placing of "cookies" on electronic devices, save in
limited circumstances where the cookie is strictly necessary for
the provision of the service in question. In practice this means
that websites placing cookies on user equipment that are not
deleted when the user leaves the website must identify a means of
obtaining user consent; and
stricter requirements for the sending of electronic marketing
messages and the making of marketing phone calls. For instance, it
is now an offence for any company or entity to phone a person on
their mobile phone for a marketing purpose without having obtained
their prior consent for such contact. The requirements now extend
to all forms of marketing carried out by means of a publicly
available electronic communications service – including
for example the soliciting of support for charitable organisations
or political parties.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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