The Santa Claus Controversy

Data protection laws lay down strict conditions for the use of personal data and there is no evidence that Santa Claus has an adequate compliance programme in place.

Children across the world who write letters to Claus with a list of gift requests are not told for how long that data is kept, or if it will be used for other purposes such as marketing by third parties.

Relevant legislation stipulates that data should not be kept for longer than necessary, which would mean 25th December, though Claus may argue that he needs to keep the letters for six years to use in any gift-related lawsuits.

“There is a stream of questions Santa has yet to answer,” said William Malcolm, a data protection specialist at Pinsent Masons.

“Is this information used for anything other than present giving? Information passes out of the home jurisdiction, so does Santa check the letters for unambiguous, specific and informed consent to this overseas transfer?”

The legislation says that you must inform someone when you are collecting data about them, and tell them what the purpose of collection is.

“What about the naughty/nice database?” said Malcolm.

“Are children given notice that behavioural data is being collected about them throughout the year? And does it qualify as covert monitoring, which would breach Article 8 of the European Convention on Human Rights?”

People can make a subject access request of databases holding their personal information, but the database operator has 40 days in which to respond.

Children are now too late, therefore, to find out before Christmas if they are on the naughty or nice section of the system.

“Additionally, anyone taking orders in the post as Santa does has certain obligations,” said Struan Robertson, e-commerce specialist at Pinsent Masons.

“Children have a right to reject the gifts they requested and receive a full refund within seven working days. If he does not provide lots of information about the child’s purchase when making his delivery then that period can be extended by up to three months,” said Robertson.

“All they have to do is cancel their contract, and I imagine a follow-up letter up the chimney should do it. He must also tell children that they have this right, which he plainly doesn’t,” he said.

Under the regulations, Claus is obliged to provide children with details of the price of the goods delivered, something which is to most people not in the spirit of Christmas.

For the laws to apply there must be a contract in place, but Robertson said that this was almost always the case.

“The letter up the chimney is clearly an offer, the delivery of the goods is acceptance. Under common law there also must be a form of consideration, which the glass of brandy and carrot clearly qualify as,” he said.

Claus is likely to be in breach of one company’s trade mark with his gift distribution enterprise. ‘Santa Claus of Greenland’ has a trade mark over that term in relation to games, playthings, sports goods, decorations for Christmas trees and the regulation and control of electricity, amongst other things.

“This is a clear case of infringement,” said David Woods, a litigation specialist at Pinsent Masons.

“True, Santa is from Lapland not Greenland, but I think that you could make the case that the level of general ignorance of geography is such that confusion would be created by Santa’s trading under the name Santa Claus.”

Source: Pinsent Masons

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