Is this competition rule legal?

Presumably there are some limits to what you can 'hide' in T&Cs. I imagine they can't put in that you owe them your first-born because you entered their competition. So where is the line drawn?

Haddockman wrote: »

You cannot contract outside the law. So any term that is unlawful is void ab initio.

Ok, what about something that isn't unlawful, what if it's just unreasonable? What if it's a €20 sms charge buried in a 5 page listing? Or more?

Ahem.

That last post might have been a little cryptic. The key point however is that this can't be analysed without reference to the specific data protection rules that apply.

Consent as a legitimating factor under the Data Protection Acts (or the telecoms specific regulations) applies only where it is clear and informed and where the personal data have been fairly obtained. In a situation where users are required to provide mobile phone numbers but are not notified of the use to which these numbers may be put other than in the small print then there is a strong argument to be made that the consent is not informed and that the numbers have not been fairly obtained. There are numerous rulings of the Data Protection Commissioner on this point (one example).

In the absence of specific consent then the only legitimating factor would be the so-called soft opt-in provisions of Reg. 13(7). It is unlikely that these would apply in the context of a promotion which is distinct from the sale of the product itself, but in any event it is quite clear that soft opt-in only applies where the data subject is given the opportunity to opt-out at the time of collection:

(7) A person who, in accordance with the Data Protection Act 1988, the Data Protection Regulations or these Regulations, obtains from a customer the customer’s contact details for electronic mail, in the context of the sale of a product or service, shall not use those details for direct marketing unless...

(c) the customer is clearly and distinctly given the opportunity
to object, in an easy manner and without charge, to the use
of those details—
(i) at the time they are collected.

Regulation 2

“electronic mail” means any text, voice, sound or image message including an SMS message sent over a public communications network, which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient;