The rules for direct marketing can often be confusing and convoluted, and businesses need to take steps to ensure that they comply with the regulations.
A new freed resource by the Information Commissioner’s Office (ICO) aims to help businesses better understand direct marketing legislation and its legal ramifications.
The guide aims to help data protection officers in the public sector understand how the rules apply to marketing messages.
Direct marketing is a broad subject and covers all forms of advertising or marketing correspondence directed to individuals. This includes texting, emailing, social media messaging, and traditional methods like phone calls and posting.
Additionally, direct marketing can include business marketing such as promoting products and services, as well as goals and ideals such as fundraising and campaigns.
Organizations in any industry can send direct marketing messages, however, most messages sent by public authorities to members of the public do not fall under direct marketing rules.
What are the rules?
According to the ICO, if the messages sent are “necessary for your task or function”, they do not constitute direct marketing.
In this case, if a message is not direct marketing, there is “no need to comply” with the marketing rules which are part of the Privacy and Electronic Communications Regulations (PECR). However, you must still comply with the UK GDPR rules.
If a message sent falls into the category of direct marketing, the ICO states that public authorities must “comply with the marketing rules of the Privacy and Electronic Communications Regulations (PECR) if they use electronic communications ”.
“Posts promoting services, paid for by the user or fundraising generally count as direct marketing,” the ICO said. “This means that the PECR marketing rules apply as well as the UK GDPR if you send such messages electronically. “
Anthony Luhman, director of the ICO, said the public should have “trust and confidence” in promotional messages: “If you work in the public sector, the law does not prevent you from sending promotional messages when they are necessary for your task or functions.
“However, there are times when the rules of direct marketing will apply and we want to help the public sector do it right.
“Our new guide will help you understand how to send promotional messages in accordance with the law. If done correctly, the public should have confidence in public sector promotional messages. “
However, whether or not a promotional message is direct marketing, public authorities must still comply with the requirements of the UK GDPR, which itself can be confusing and difficult to navigate.
Luhman added: “It’s important to be transparent about what you intend to do with people’s personal data, including telling them what types of messages you want to send.”
The UK GDPR gives people a right to object, and this may apply even if your promotional message is not direct marketing. The new directive contains more details on when this right can apply.
What are the pitfalls?
According to Martin Sloan, IP, Tech & Data partner at Brodies LLP, the fact that some messages are classified as direct marketing and others not can leave companies in “a slightly strange position.”
“For example, a message from a local authority about a new household recyclable waste collection service would not be direct marketing, but a message inviting people to sign up for a paid garden waste collection service would be. Direct marketing.
“Identifying where the new directives apply will require a detailed analysis of the law and the public tasks of this authority. “
In an effort to help businesses comply with data protection laws, the ICO released a Data Sharing Code of Practice in December 2020 to provide guidance on compliance with data sharing legislation. data and to ensure that their use of the data is fair, legal and responsible.
It covers several areas, including transparency, the legal bases for the use of personal data, the new principle of accountability and the obligation to record processing activities.
Sloan continued, “The new guidelines only apply to public authorities. This can frustrate charities and other third sector organizations.
“Retailers and other businesses can rely on the ‘soft acceptance’ exemption under electronic privacy laws for marketing to existing customers. However, this exception only applies to the sale of goods or services, which means it is not available to charities when they contact former supporters for fundraising purposes. or to tell them what the organization has done.
Sload added: “Although the context of the new guidelines is not clear, those in the third sector may feel aggrieved that the ICO did not take the opportunity to consider the definition of direct marketing in the context of this sector as well. “