Data protection and direct marketing is now a focus of government policy and the government wants to make it easier for the Information Commissioner’s Office (ICO) to fine companies in non-compliance of the rules. At the Department of Culture, Media and Sport’s request, Which? established “The Nuisance Calls and Texts Task Force on Consent and Lead Generation” (the Task Force). The Task Force’s aim is to raise standards in the area of direct marketing and require businesses to put consumers back in control of their personal data and protect them from nuisance calls and texts. The Task Force has published a report which recommends a number of actions to be taken by businesses, industry bodies, regulators and the government to improve direct marketing practices.
Direct marketing practices
Direct marketing is communication (by email, phone, text or post) of any advertising or marketing material which is directed to particular individuals. The Task Force recommends that compliance with the law on consumer consent to direct marketing should be treated by businesses as a board level issue in the context of corporate risk.
The rules surrounding direct marketing are very strict. However, the application of the rules differ according to the type of communication and whether the recipient is a consumer or a corporate subscriber. For instance, consent by a consumer to receive marketing by email must be obtained via an ‘opt-in’ method rather than ‘opt-out’. This means that a consumer must tick a box to consent to receiving electronic communications rather than tick a box stating that they do not wish to receive them. For post and non-automated telephone marketing consumers have the right to ‘opt-out’ and to register free of charge with the Mail Preference Service (MPS) or the Telephone Preference Service (TPS). Although the relevant legislation does not require the “opt-in” method for non-electronic communications the ICO advises that it is best practice to obtain “opt-in” consent in all circumstances.
The ICO has started to scrutinise companies’ compliance with the relevant legislation. Penalties for non-compliance may be significant fines, damages claims and loss of goodwill. In December 2014 two large fines were issued:
- the company behind Manchester’s annual festival, the Parklife Weekender, was fined £70,000 for sending unsolicited text messages.
- Amber UPVC Fabrications Limited (Amber) was fined £50,000 for failure to comply with the rules on unsolicited direct marketing calls to individuals (many of whom had registered with the TPS). The Amber case is a clear reminder that businesses are legally obliged to check the TPS and the Fax Preference Service before calling or faxing consumers for direct marketing purposes without their consent.
The Direct Marketing Association (DMA) runs a voluntary MPS and Email Preference Service (EMPS). Whilst it is not legally obligatory for marketers to search against the MPS or EMPS, DMA members are required to observe them. Further, the Advertising Standards Authority has made checking the MPS register a requirement of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing. Breach of such codes can lead to bad publicity.
Buying and selling data
The Task Force recommends that, as a minimum, businesses should commit to reviewing and implementing the ICO’s guidance in relating to collecting and buying data. The following ICO guidance should be made clear in business policies:
- Inform other companies in the data chain when a consumer has opted out of marketing calls or texts.
- Businesses relying on third party consent should satisfy themselves that the consent was not obtained from the consumer more than six months before it is used.
- Third party consent will not be sufficient to override TPS registration and businesses that purchase data must screen against the TPS all telephone numbers obtained.
- Businesses should record proof of consent in a format that can be used by future recipients of the data.
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