1. COMPETITION - McCarthy Tétrault

gateways as extensions to their PABX systems or where companies' selfprovide
termination services for their staff. However, other than for private
use, the provision of GSM gateway services to third parties will remain
unlawful under the WTA.
The Radiocommunications Agency, which is the agency responsible for
enforcing the WTA requirements until the new super-regulator, Ofcom,
takes over at the end of 2003, has suggested that commercial GSM
gateway providers come to a suitable, pragmatic arrangement with mobile
operators allowing them to continue to provide the services, under the
authority of the mobile operator's licence. There would appear to be little
commercial likelihood of mobile operators consenting to this activity.
Indeed, the gateway service provider, Floe Telecom Ltd, lodged a
complaint with Oftel on 7 August 2003 against Vodafone, after the mobile
operator periodically suspended Floe's access on the grounds that its
gateway activities were unlawful. Floe has alleged that it has a valid
contract in place with Vodafone that makes its gateway activities legal.
Floe alleges that Vodafone's actions amount to an unlawful refusal to
supply.
For more information please contact: colin.long@olswang.com
COMMENTARY
FRANCE
USE OF PERSONAL DATA
FOR MARKETING PURPOSES
By S. LIPOVETSKI (slipovetsky@kahnlaw.com)
and F. PERBOST (fperbost@kahnlaw.com)
The principal source of legislation regulating data protection in France is
Law No. 78-17 of 6 January 1978 known as "Loi Informatique et Libertés"
(the "Law"). The Law is expected to be amended to comply with the
provisions of European Directive 95/46/EC of October 24, 1995 (the "EU
Data Protection Directive"). The draft law implementing the EU Data
Protection Directive (the "Draft Law") passed its first reading on 1st April
2003.
At present, personal data may be used for marketing purposes if the
purpose is identified in the filing with the French data protection authority
(the "CNIL") and if the persons whose data are collected are informed or
gave their consent.
The Law only requires the consent of the data subject (i.e. opt-in) when
automatic processing of sensitive personal data (as indicated above) is
involved.
In parallel, the Law provides for a general opt-out principle: the data
subject may oppose the collection of his or her personal data for legitimate
reasons.
To enable the individual to exercise his or her right to object to the
collection of personal data, the Law requires that persons whose data are
being collected receive the following information:
• whether their responses are mandatory or optional;
• the consequences of their failing to provide a response;
• persons (both individuals and legal entities) which will receive their
data; and
• their right to access their data and to obtain the correction of incorrect
data.
This information must be provided to the data subject at the time of
collection of data and at a later date if the information changes. If the data
subject is not informed of the persons who will receive his or her data at
the time of collection of the data, he or she must be provided with this
information prior to the transfer of the data to another person.
The major innovation of the Draft Law is to establish a general opt-in
system where all individuals must give their consent to the collection of
data relating to them.
Under the Draft Law, the following information shall be provided to the
persons on whom the data are collected:
• identity of the data controller,
• purpose of the processing,
• whether their responses are mandatory or optional;
• the consequences of failing to provide a response;
• persons (both individuals and legal entities) who will receive their data;
• the right to access their data and to correct incorrect data, and the
right to to oppose to the collection of such data; and
• to prevent the transfer of personal data to any country that is not a
State member of the European Community, if any.
Often companies wish to use personal data to send to its customers
unsolicited information about products or services. Most of the claims
received by the CNIL deal with the exercise of the rights specified in the
Law by persons on whom data are collected, and in particular, with the
right to oppose receiving unsolicited mails.
According to the terms of Article L 33-4-1 of the Posts and
Telecommunications Code (inserted by Order n° 2001-670 of 25 July
2001, Article 16), it is prohibited to directly canvass, using automatic calling
machines or fax machines, telecommunications network subscribers or
users who have not consented to receiving such calls. It is also provided
that operators or their distributors shall provide free of charge to those
subscribers or users who so wish, the means to give their consent to
receiving calls referred to in the above subparagraph. They shall make
available to any person who so requests the list of these subscribers or
users.
At present, the means to give such consent are not determined.
In addition, Article L121-20-5 of the Consumer Code (inserted by Order no.
2001-741 of 23 August 2001 art. 5 and art. 12) specifies that direct
canvassing by a professional, by means of automatic calling machines or
faxes, of consumers who have not expressed their agreement to receive
such calls is prohibited. Distance communication methods other than those
mentioned in the previous paragraph, involving personal communication,
may only be used where the consumer has not raised an objection. The
conditions under which the consumer expresses his/her agreement to
receive the calls mentioned in the first paragraph, information that the
professional must supply to the consumer regarding his opportunity to raise
an objections as well as the conditions under which objection registers are
kept are to be prescribed by a Council of State decree. Such Council of
State decree has not been adopted.
The sending of unsolicited e-mail is subject to the opt-out principle at
present but should be subject to the prior consent of the persons who are
solicited as soon as a French draft law ("Projet de loi sur l'économie
numérique") is adopted. The last version of the draft law is a version dated
June 26, 2003, modified by the French Senate and transmitted to the
French National Assembly for its second reading. This draft law specifies
that the use of automated calling systems without human intervention
(automatic calling machines), facsimile machines (fax) or electronic mail for
the purposes of direct marketing may only be allowed to subscribers who
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