Introduction

The Information Commissioner’s Office (ICO) has issued fines totalling £590,000 to five companies for collectively making 1.9 million unwanted direct marketing calls which targeted the elderly and people with vulnerabilities, thereby infringing the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR).

This latest action is part of a wider crackdown from the ICO to tackle rogue companies using pressurised sales techniques to sell insurance for white goods, such as washing machines, fridges, and other household appliances, including TVs. A staggering £1.45 million in fines have now been issued by the ICO since October 2021 to 16 companies for making illegal direct marketing calls, many to people who had taken steps to block such nuisance calls. The fines resulted from detailed investigations by the ICO, assisted by intelligence from the National Trading Standards.

Whilst it is crucial for businesses to explore all possible avenues with regards to marketing their good or services, it is vital for businesses to avoid breaching the relevant rules and regulations when carrying out direct marketing activities, as the financial penalties and reputational harm can be substantial.

Myerson’s Commercial team provide top tips on how to ensure your marketing tactics align with the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Top Tips

The table below sets out some helpful guidance and potential actions to take, depending on the method of marketing being used.

1. Live calls

Points to note

Generally, prior consent is no required, but you must:

• ensure the individual or business has not objected to receiving live marketing calls; and
• 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.

Potential action

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

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

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

2. Email and Texts

Points to note

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; and

 

• 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, to avoid breaching the legislation and facing a potentially hefty fine from the ICO.

Potential action

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.

3. Post

Points to note

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.

Potential action

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.

Conclusion

It is important to note, however, that there are a number of nuances and additional considerations to bear in mind with direct marketing and that the application of the rules often depends on the specific circumstances such as the nature of the marketing campaign, and the type of customers your business deals with.