COMMONS AMENDMENT (Hansard, 10 July 1998)

§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 19.
I shall also speak to Amendments Nos. 30, 76, 85 and 112. Amendments Nos. 19, 30 and 112 make small but important improvements to changes that were made to the Bill at Report stage in this House.
The House may remember that, following amendments tabled by the noble Lord, Lord Norton, in Committee the Government brought forward amendments which would require data controllers to respond in writing within 21 days to written notices from data subjects under Clauses 9, 10 and 13.
Following those changes the Government received very strong representations from the direct marketing industry about the requirement attached to Clause 10. It pointed out that it would be very difficult and costly for them to comply with, and that it might lead to a withdrawal of "opt out" boxes, which are very convenient for data subjects. So, paradoxically, a provision which was intended to help data subjects could result in their being worse off.
In any event, the requirement in Clause 10 serves too limited a function to offer worthwhile protection for data subjects. It is merely a statement of intention to comply 1487 with the law. A similar argument applies to the requirement under Clause 13(1). Amendments Nos. 19 and 30 accordingly remove these requirements; and Amendment No. 112 makes a consequential change to Schedule 1.
I turn to Amendments Nos. 76 and 85. The Bill makes provision in many places for notices and requests for other communications to be given or made "in writing".
It has been put to us—I hope this will chime agreeably in the mind of the noble Lord, Lord Avebury—that in this electronic age such notices should be capable of being made electronically. The Government agree. Accordingly, the new clause added by Amendment No. 76 provides in respect of certain of these that the requirement for them to be in writing is satisfied if they are given or made in electronic format; that is, by fax or e-mail. It also provides for the Secretary of State by regulation to provide that the requirement for notices and requests to be in writing is not to apply in circumstances prescribed in the regulations.
Amendment No. 85 adds those regulations to the list of statutory instruments subject to negative resolution procedure in Clause 63(5).

§ Lord Skelmersdale
My Lords, I notice that the Minister referred specifically to the new clause after Clause 60 and Amendment No. 76. I observe that in subsection (2) the electronic transmission must be received in legible form. As one who has great difficulty on occasions with facsimile machines, and receives what I can only describe as gobbledegook—most certainly not legible—I assume that it will be a defence to produce a piece of fax paper which is clearly not in legible form.

§ Lord Williams of Mostyn
My Lords, I think that that would be right in the same way as any other form of writing has to be capable of being read. Otherwise it is not a valid notice.

§ Baroness O'Cathain
My Lords, perhaps I may seek clarification on the issue raised by my noble friend. Facsimile messages have a horrible habit of disappearing off the paper. For how long would one need to keep a copy? They fade.

§ Lord Williams of Mostyn
My Lords, the old ones fade, the new ones in our spanking new Home Office equipment are on plain paper. It is not really a question of how long one needs to keep a notice, because there is no difference in principle between a fax and a typewritten notice, which does not necessarily have to be kept by the recipient. It is the fact that the notice was given. I take the point made by the noble Baroness, that if one is going to entrust the message to the fax it would be a wise precaution for the fax sender to have a record that the fax was capable of being proved to have been sent. That is an important point.