The Data Protection Act 1998 regulates the way personal data is handled by businesses and organisations and what rights the subject has to control it. Please see the Crab Alert – Data Protection for more information.
The Privacy and Electronic Communications (EC Directive) Regulations 2003 set out the rules to follow when sending marketing and advertising by electronic means, for example telephone, fax, email, text and picture or video message, or by using an automated calling system amongst other things.
Direct marketing covers the promotion of aims and ideals as well as the sale of products and services. This means that the rules cover both commercial and not-for-profit organisations.
In many cases you will need consent to send people marketing, or to pass their details on. You will have to demonstrate that the consent was knowingly given, clear and specific, and you should keep clear records of the consent. The Information Commissioners Office (ICO) recommends the use of opt-in boxes.
The rules on calls, texts and emails are stricter than those on mail marketing, and consent must be more specific and not form part of a one-size-fits-all approach.
You can make live marketing calls to numbers not registered with the Telephone Preference Service (TPS), if it is fair to do so. But you must not call any number on the TPS list without specific prior consent.
You must not make any automated pre-recorded marketing calls without specific prior consent.
From 16th May 2106 all UK registered direct marketers must display their Caller Line Identification when making automated or live direct marketing telephone calls.
You must not send marketing texts or emails to individuals without their specific prior consent. There is a limited exception for previous customers, known as the soft opt-in.
You must stop sending marketing messages to any person who objects or opts out of receiving them.
You must carry out rigorous checks before relying on indirect consent (i.e. consent originally given to a third party). Indirect consent is highly unlikely to be valid for calls, texts or emails.
The use of marketing lists is not banned by the law, but you must carry out diligence to make sure that any such list was compiled fairly and accurately reflects peoples’ wishes. Bought-in call lists should always be screened against the TPS list. It is difficult to use bought-in lists for text, email, or automated call campaigns as these require very specific consent (either where the specific organisation is named or it is within a precisely defined category).
The ICO have enforcement powers, including the power to issue a fine of up to £500,000, where there is a failure to comply with the law or an individuals’ objections to marketing are persistently ignored.
The Information Commissioners Office direct marketing checklist is a great tool for helping you to comply.
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