ICO Publication of Direct Marketing Guidance

21 Oct 2013

The Information Commissioner's Office ("ICO") has produced new guidance on direct marketing to help organisations be aware of their obligations. Direct marketing is defined as "The communication (by whatever means) of any advertising or marketing material which is directed to particular individuals". The new guidelines outline the requirements enforced by the Data Protection Act 1998 ("DPA") as well as the Privacy and Electronic Communications Regulations 2003 ("PECR"). The move comes in light of the ever increasing dissatisfaction, annoyance and even anxiety felt by the general public towards the volume of marketing they receive.

Collection of Data

When collecting information from consumers for the purposes of marketing, it is important that organisations clearly detail their name, what the information will be used for and whether the organisation may seek to collect further data. Any information obtained should only be used for the purposes that have been identified to the consumer. If this is not done, further consent will be required. While it is not essential to obtain explicit consent, doing so will ensure compliance with best practice guidelines as well as maintaining consumer satisfaction.

There is always the option of buying in marketing lists but care should be taken when doing so. It is important that the information is confirmed to be accurate and information of how consent was obtained and what it covers should be detailed. When marketing to these individuals, it should be clarified how their details have been obtained. In addition, these lists are only truly effective for telephone marketing. When the intention is to market via texts, emails or recorded message, the individuals must have given explicit consent to receive marketing from that specific organisation in the past six months. The added risks from buying in data should therefore be carefully considered.

Protection of Individuals and Companies

The level of coverage provided by the DPA and PECR varies depending on whether the marketing is aimed at an individual or an organisation.

Understandably, individuals have been given a heightened level of protection. Individuals may register with both the Telephone Preference Service and Mail Preference Service in order to opt out of receiving any direct marketing. It is important that marketing lists are regularly checked against these services to ensure that no one is contacted unnecessarily. It is recommended that those who opt out are not deleted from internal lists but instead a note of their preference is made so if their details are included in a bought in list, then their preference will be protected. However, should an individual opt in to marketing at a date following their subscription to a preference service, then the opt in overrides in that specific area.

Individuals must be given the opportunity to opt out from receiving marketing, even if they have previously agreed to it. It is important that a simple way to opt out is made available in each communication that is sent to them. Opting out should be made as simple as possible so that they do not stay subscribed simply for ease.

For companies, there is a specific Corporate Telephone Preference service which organisations should reconcile with their marketing lists such that all opt outs are noted. Companies do not have the ability to opt out of email marketing but in order to maintain the goodwill of potential customers, it may be advisable to accept any opt out requests received. If emails are sent to a specific employee's company email, they have the right to make a s11 request under the DPA for the marketing to stop.

Breach of the guidelines

The ICO has the ability to impose substantial fines of up to £500,000 for organisations that seriously breach the data protection principles. In the light of the public's generally negative attitude to the onslaught of marketing, the Government has commenced an enquiry in to nuisance calls and texts. The ICO have submitted their thoughts to this enquiry, requesting that the level of harm required in order to penalise an organisation is lowered. If these new powers are granted, then the importance of complying with the direct marketing guidelines will be heightened.

Aside from the regulatory aspect, failure to comply with these regulations may result in the loss of the goodwill of customers and in turn potential business. There is also the potential that consumers who are tired of constant unsolicited marketing that they have formally opted out of may take legal action. The importance of understanding the obligations is therefore essential and thus if you are in a business which involves direct marketing please do contact the team if you have any doubts as to how the guidelines may impact you.

By Ragavan Arunachalam, Senior Associate and Brónagh Adams

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