Direct Marketing: ICO Issues New Fines to Fight Illegal Marketing Tactics

Live calls

Generally, prior consent is not required, but you must: 

• Ensure the individual or business has not objected to receiving live marketing calls.
• Check that the number is not listed on the Telephone Preference Service (TPS) when calling consumers or the Corporate Telephone Preference Service (CTPS) when calling businesses. 

Warning! If you record live calls, you must obtain specific consent to this from the individual or business. 

Maintain registers of individuals or businesses who have specifically objected to receiving live marketing calls. 

Check the phone numbers against the TPS or CTPS prior to making such calls. 

Obtain specific consent prior to recording any live call and document such consent.

Emails and Texts

Generally – you can only send marketing texts or emails to individuals if that person has specifically consented to receiving them from you. 

Exemption: ‘Soft Opt-in’. This means organisations can send marketing texts or emails if: 

• They have obtained the contact details in the course of a sale of a product or service to that person. 
• They are only marketing their own similar products or services. 
• They gave the person a simple opportunity to refuse or opt out of the marketing, both when first collecting the details and in every message after that. 

Such rules are only applicable to individuals, and therefore, organisations can send electronic marketing mail to corporate subscribers without needing to comply with the above requirements.  

But note that such marketing emails and texts may result in the processing of an individual’s personal data, which, in certain circumstances (including direct marketing), individuals have an absolute right to object to under data protection legislation. It is, therefore, imperative that you ensure you comply with data protection legislation when sending such marketing communications, in order to avoid breaching the legislation and facing a potentially hefty fine from the ICO.  

Ensure that specific consent is obtained from the individuals who the marketing mail is being sent to and document evidence of such consent. 

Only rely on the ‘soft opt-in’ exception where all the relevant requirements have been satisfied. 

Post

PECR does not cover marketing by mail; however, organisations sending marketing mail to named individuals must comply with the data protection legislation. The Data Protection Act requires that an individual is aware that an organisation has their contact details and intends to use them for marketing purposes. 

Individuals can register their address with the Mail Preference Service (MPS), which works in a similar way to the TPS.

Provide individuals with clear guidance and a simple way of opting out of receiving marketing my post. 

Check the addresses of individuals against the MPS prior to sending such marketing material by post.