33
European Commission has developed contract clauses for companies to
use to comply with the EU Directive.28 Generally, enforcement is
expected to be carried out by the private sector, backed by government
enforcement under unfair and deceptive marketing and trade practices
legislation.29 The Principles require the “safe harborites” to use readily
available independent third-party dispute resolution mechanisms, such
as the American Arbitration Association or BBBOnline (a programme of
the Better Business Bureau). Failure to comply with the Principles can
result in an organisation’s being removed from the Department of
Commerce list.
4.3.18 The Safe Harbor approach has been subject to criticisms as being too
piecemeal and scattered, lacking transparency, lacking potential for
enforceability and possibly compensation, and possibly being less
effective than more prescriptive and broader legislation. Nonetheless,
the focus on industrial sectors where sensitive personal information is
likely to be held (e.g., financial services), self-certification according to
known standards, and contractual arrangements does have potential for
adaptation in the Botswana context, particularly in early stages.
4.3.19 Privacy, which among other definitions, has been called “the right to be
left alone,” becomes an important element in the control of other
electronic activities. Specifically, unsolicited marketing, automated
calling, telemarketing, fax marketing, and “spam,” Data protection
legislation or telecommunications legislation in a number of jurisdiction
deals with these electronic activities. Telemarketing may be a source of
fraud, particularly when vulnerable persons are being preyed upon, and
is often dealt with under deceptive marketing practices legislation (as
well as penal legislation). Spam is increasingly recognised as a problem
that has a significant negative effect on users’ confidence in the use of email and may be having a negative effect on the performance of the
global e-mail network. According to some sources, unsolicited bulk mail
volumes now account for as much as one-half of all e-mail traffic on the
Internet. Some studies indicate that there are significant losses in
productivity as workers spend increasing amounts of time clearing spam
28
The European Commission has approved model contracts for data transfer both for controllerto-controller transfers (Commission Decision 15 June 2001 on standard contractual clauses for
personal data to third countries, under Directive 95/46/EC, (2002) OJ L181/19) and for
controller-to-processor transfers (Commission Decision 27 December 2001 on standard
contractual clauses for the transfer of personal data to processors established in third countries,
under Directive 95/46/EC, (2002) OJ L6/52.) Model contracts for data transfer have also been
developed by the International Chamber of Commerce
29
Any reliance by Botswana on a similar scheme should be connected with policy development
on an independent and expert Competition Authority to enforce unfair trade practices.