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Selling and marketing

 

Direct marketing by telephone, email, text message, fax and post

In this section:

Introduction


CAP Code


Legaleze guidance to marketing compliance


Preference and list cleaning services


Privacy and Electronic Communications (EC Directive) Regulations

  Automated calling

  Unsolicited telephone calls
  Emails and text messages
  Fax communications
  Direct mail


Enforcement

Introduction

Direct marketing by telephone, email, text message, fax and post is subject to trade-led regulation under the CAP Code. In addition, trade bodies, notably the Direct Marketing Association and the Direct Selling Association. seek to enforce best practice marketing standards via their codes of practice.

Regarding statutory regulation, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”) regulate the selling and marketing of goods and services via email, text message, telephone and fax and these are covered on this page. Marketers must also comply with the Consumer Protection from Unfair Trading Regulations 2008 - see Advertising to consumer regulations - and with data protection requirements - see Data protection in relation to marketing.

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By definition, direct mail promotion is not regulated by PECR but is covered on a self-regulatory basis by the Advertising Codes and by the Direct Marketing Association and the Direct Selling Association.

Further reading: Information Commissioner’s Office guidance: look in the Guidance Index under “marketing”

CAP Code


The CAP Code (see also Advertising Codes) has a specific section on Database Practice which should be observed in connection with the use of databases of potential customers used for direct marketing. The rules go beyond the legal requirements (see below: Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Data Protection Act).

The CAP Code requires among other things that:


* Personal information must always be held securely and must be safeguarded against unauthorised use, disclosure, alteration or destruction.


* Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media.


* Marketing communications are suitable for those they target.


* Marketing communications are not sent unsolicited to consumers if explicit consent is required.


* Anyone who has been notified to them as dead is not contacted again and the notifier is referred to the relevant preference service.


* Marketing communications are not sent to consumers who have asked not to receive them or, if relevant, who have not had the opportunity to object to receiving them.


* Databases are accurate and up-to-date and that reasonable requests for corrections to personal information are effected within 60 days.


* Databases have been run against relevant suppression files within a suitable period.


* Marketing communications sent by electronic mail (but not those sent by Bluetooth technology) must contain the marketer’s full name (or, in the case of SMS messages, a recognisable abbreviation) and a valid address;to which recipients can send opt-out requests.


* Fax and non-live-sound automated-call marketing communications must contain the marketer’s full name and a valid address or freephone number to which recipients can send opt-out requests.


* Explicit consent of consumers is required before sending marketing communications by fax or by electronic mail (excluding by Bluetooth technology) but marketers may send unsolicited marketing about their similar products to those whose data they have obtained during, or in negotiations for, a sale (but Data marketers must tell those consumers they may opt out of receiving future marketing communications both when they collect the data and at every subsequent occasion they send out marketing communications. Marketers must give consumers a simple means to do so).


* Explicit consent of consumers is required before sending non-live-sound marketing communications by automated calling systems.


* Explicit consent is not required when marketing business products by fax or by electronic mail to corporate subscribers, including to their named employees.

Legaleze guidance


in practice, in order to ensure compliance with the CAP Code and the relevant statutory rules, marketers should take the following steps in relation to marketing lists:
All marketing lists
* Remove duplicate entries (“de-dupping”)
* Acquire and maintain lists in accordance with the CAP Code and Data Protection Act (see Data Protection)
* Remove “gone away” addresses and deceased persons (see below - Preference and list cleaning services)
Direct mailing lists:
* Check against the Mailing Preference Service in order to remove persons who have registered their wish not to receive marketing communications (unless they have told you otherwise).See below – Preference and list cleaning services
Telephone lists
* Check against the Telephone Preference Service to remove persons who have registered their wish not to receive marketing telephone calls (unless they have informed you otherwise). See below - Preference and list cleaning services
Fax lists
* Check against the Facsimile Preference Service to remove persons who have registered their wish not to receive marketing fax communications (unless they have informed you otherwise). See below - Preference and list cleaning services
Email lists
* Check against the Email Preference Service in order to remove persons who have registered their wish not to receive marketing emails (unless they have informed you otherwise). See below - Preference and list cleaning services

Preference and list cleaning services


It is possible for you to carry out your own marketing list cleaning by in-house verification, using deduplication software and checking against the various databases. However unless the list is a relatively small one and restricted to a small geographical area, it is likely that doing your own list cleaning will be very time-consuming and laborious.

The usual way for small and medium sized businesses to have marketing lists checked against the various databases referred to above is to use the services of a list cleaning company. The Direct Marketing Association maintains a list of list cleaners at corporate.mpsonline.org.uk

The Royal Mail website has information its list cleaning service called “Clear Prospects” (R).

In dealing with such companies, it is better to be aware of the various Preference services and other databases which are available in order to assist in marketing lists being compliant with the law and as accurate as possible. The following section therefore contains a brief description of the services available.

General address databases


The Electoral Roll or Register is maintained at a local level by local authorities. The full version is only available for electoral, legal and credit reference purposes. The edited version omits persons who wish their address to remain private and have opted out. The edited version is available for purchase by anyone. Enquiries should be made at your local electoral registration office.

The Royal Mail maintains the National Change of Address Suppress database (“NCOA® Suppress”).

There are other commercial databases which claim to maintain records of “gone away” addresses and even addresses in some cases to where people have moved. An example here

The Mailing Preference Service (“MPS”) is operated by the Direct Marketing Association (“DMA”) and is funded by the direct mail industry. It enables consumers to have their names and home addresses in the UK removed from lists used by the industry. It is actively supported by the Royal Mail and all directly involved trade associations and fully supported by The Information Commissioners Office. The service is free to consumers.
Further information: corporate.mpsonlinr.org.uk

Deceased Preference Service


The MPS accept deceased person notifications. There are also services dedicated to registration of deceased persons such as:


Deceased Preference Service
Bereavement Register

Telephone Preference Service (“TPS”) and the Facsimile Preference Service (“FPS”)


The TPS and FPS services are statutory, in the sense that the registers they contain must be maintained by law (see below: Privacy and Electronic Communications (EC Directive) Regulations 2003)  by OFCOM. OFCOM has appointed The Telephone Preference Service Limited (a subsidiary of the Direct Marketing Association (“DMA”) to maintain the TPS and the FPS. 


For further information, visit the TPS site.


At the time of writing there was no search facility but you should find information on how to use the service by going to "Licensee Information & List" and then "Compliance Scenarios".

Email Preference Service


The DMA offers to consumers an email preference service. It is not clear from the website how businesses may access this service for list cleaning. The website is at:
http://www.ims-dm.com/cgi/offemaillist.php

Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”)


These Regulations implement in the UK the requirements of the similarly named EC directive. Much of the content is directed towards telecommunications providers and is not covered on this site.

As in the case of advertising to business and consumers, compliance with the Advertising Codes will usually if not always mean that a marketer will be in compliance with the PECR.

There are rules in PECR which regulate the selling and marketing of goods and services via email, text message, telephone and fax and these are covered on this page.

By definition, direct mail promotion is not regulated by PECR but is covered on a self-regulatory basis by the Advertising Codes and by trade associations such as the Direct Marketing Association and Direct Selling Association.

PECR has also since 2011 regulated the use of “cookies” on customers’ computers. This aspect is covered on the E-commerce page.

Further reading: Information Commissioner’s Office guidance: look in the Guidance Index under “marketing”


Automated calling


Use of automated calling systems using recorded messages for direct marketing purposes is forbidden except when the subscriber of the telephone line called has previously notified the caller that for the time being he consents to such communications being sent by the caller on that line.(PECR reg.19).

Unsolicited telephone calls


There is no general ban on the making of unsolicited (i.e. not requested by the recipient) telephone calls for direct marketing purposes (“cold calling”). However, if the caller uses a public telephone or other electronic communications service for this purpose, he must give his name to the recipient. If the recipient requests it, the caller must give him either the caller’s address or free telephone number on which he can be reached. (PECR reg.24).

There are two circumstances when a person may not use public telephone or other electronic communications services for the purposes of cold calling:


* if the line called belongs to a subscriber who has previously notified the caller that such calls should not for the time being be made on that line; or


* if the number of the called line is listed in the register kept under regulation 26 of PECR (PECR reg.21).


In the UK the register is maintained on behalf of OFCOM by the Direct Marketing Association and is branded as the Telephone Preference Service (“TPS”) (see Telephone Preference Service above).
Calling a number which has been listed on the TPS register for less than 28 days preceding that on which the call is made is not a contravention of the PECR.
A subscriber who has registered his number on the TPS may notify any particular caller that he does not, for the time being, object to the caller making calls on that line. The subscriber may withdraw such notification at any time.

What’s New items on this topic [go to the What's New page or archive for the full item]:

17/01/2017: ICO imposes GBP 40,000 penalty on Bognor Regis IT firm

IT Protect Ltd of Bognor Regis has been fined GBP 40,000 by the Information Commissioner’s Office (ICO) for breaching privacy law by calling people registered with the Telephone Preference Service (TPS). This is the first fine for nuisance calls issued by the ICO since it took over management of the TPS.

IT Protect had purchased a list of people and phone numbers, many of whom were elderly people, from another firm. It then made calls to these numbers to try to sell a call blocking device. The ICO’s investigation, which involved support from West Sussex Trading Standards, found IT Protect had not carried out sufficient checks to ensure that the people on the list had given consent to receive the calls.

29/02/2016: Prodial Ltd has been fined GBP 350,000

As part of its clamp down on nuisance phone calls, the Information Commissioner's Office (ICO) has issued its largest fine ever. Prodial Ltd has been fined £350,000 for making 46 million nuisance calls. The company, which was also issued a stop order played recorded messages relating to PPI claims. The ICO has also issued three further stop orders against companies making nuisance calls.

17/03/2014: ICO action against marketing companies which hid identity
http://ico.org.uk/news/latest_news/2014/marketing-companies-punished-after-hiding-identity-while-making-nuisance-calls-17032014#
The Information Commissioner’s Office (ICO) has issued enforcement notices requiring two telephone marketing companies in North West England to improve their practices after over 100 reports were made to the regulator that the companies were making nuisance marketing calls. It is believed that the true number of complaints against Isisbyte Limited, based in Oldham, and SLM Connect Limited, based in Darwen, may be far higher, as the ICO has found evidence that both companies have been making nuisance calls while failing to correctly identify themselves.
Comment: it appears that the companies concerned were making live marketing calls to people who had registered with the Telephone Preference Service, and that they also tried to hide their identity by routinely telling people that they were calling from a different company.

Emails and text messages


Use of emails (which by the definition in the PECR includes sms or text messages) for direct marketing purposes is regulated differently according to whether the recipient is an individual subscriber or a corporate subscriber. A “corporate subscriber” is defined as any legal entity (e.g. a registered company, limited liability partnership etc.).
Legaleze comment: this definition should preferably have distinguished between consumers and business subscribers. The draftsman (of the EU legislation) presumably considered it would be difficult for a marketer to identify a business email address from a directory or otherwise. The effect of the “corporate subscriber” definition is that sole traders and businesses trading as an “old style” partnership are treated as if they were individual subscribers for the purposes of the PECR.

Individual subscribers: a person may not send an email for direct marketing purposes to an individual subscriber unless:


* the recipient of the email has previously notified the sender that he consents for the time being to such communications being sent, or


* the sender has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient; and 2 conditions are met:
(a) the direct marketing is in respect of the sender’s similar products and services only; and
(b) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication..

Corporate and individual subscribers: a person may not transmit emails for the purposes of direct marketing (e.g. “spam”) if:


* the identity of the person on whose behalf the communication has been sent has been disguised or concealed;


* the recipient of the communication has not been provided with a valid email address to which he may send a request that such communications cease;


* the email would contravene regulation 7 of the Electronic Commerce (EC Directive) Regulations 2002; or


* the email encourages recipients to visit websites which contravene that regulation.
Note: regulation 7 of the Electronic Commerce (EC Directive) Regulations 2002 is dealt with in the section on e-commerce. This regulation provides that any service provider must ensure that any commercial communication provided by him (and which is part of an” information society service”):
* is clearly identifiable as a commercial communication
* clearly identify the person on whose behalf the commercial communication is made
* clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously; and
* clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously.

What’s New items on this topic [go to the What's New page or archive for the full item]:

24/01/2017: ICO imposes GBP 50,000 monetary penalty for spam text messages

LAD Media sent nearly 400,000 unsolicited text messages which read: ‘Government schemes allow you to write off a high % of debt you cannot afford, reply HELP or go to www.resolvefinance.co.uk for information. Or Stop to opt-out.’ The ICO investigated the case after it received more than 150 complaints about the messages.

06/12/2014: Manchester festival organisers fined by ICO for unsolicited texts

The Information Commissioner’s Office (ICO) has imposed a monetary penalty of £70,000 on Parklife Manchester Ltd, which runs the annual parklife weekender festival, following numerous complaints about unsolicited text messages.


28/11/2012: Spam texters fined GBP440K in ICO crackdown on illegal marketing
The ICO has imposed monetary penalties totalling GBP440,000 on two owners of a marketing company which sent out millions of unlawful spam texts over the past three years. This is the first time that the ICO has used its power to issue a monetary penalty for a serious breach of the Privacy and Electronic Communications Regulations (PECR) since these powers were brought into force in January 2012.

Fax communications


Use of fax machines for direct marketing purposes is regulated differently according to whether the person called is an individual subscriber or a corporate subscriber. A “corporate subscriber” is defined as any entity which is a legal entity [e.g. a registered company, limited liability partnership etc.].


Legaleze comment: this definition should preferably have distinguished between consumers and business subscribers. The draftsman (of the EU legislation) presumably considered it would be difficult for a marketer to identify all businesses from a directory. The effect of the “corporate subscriber” definition is that sole traders and businesses trading as an “old style” partnership are treated as if they were individual subscribers for the purposes of this regulation.


Individual subscribers: a person is not permitted to send a fax communication for direct marketing purposes to an individual subscriber unless the subscriber has previously notified the caller that he consents for the time being to such communications.


Corporate subscribers: fax communications are permitted unless the subscriber has previously notified the caller that such communications should not be sent on that line; or the subscriber’s line is listed in the register kept under regulation 25 of PECR.
(PECR reg.20).


In the UK the register is maintained on behalf of OFCOM by the Direct Marketing Association and is branded as the Facsimile Preference Service (“FPS”).


Calling a number which has been listed on the FPS register for less than 28 days preceding that on which the call is made is not a contravention of the PECR.


Information to be given in permitted fax communications: the communication must give the name of the sender and either the address of the sender or a telephone number on which he can be reached free of charge.

Direct mail


Direct mail marketing is not regulated by the PECR (but see CAP Code above). However, as in the case of electronic/telephone marketing, it is affected by the requirements of the Data Protection Act see the section on data protection to the extent that it is addressed to named individuals.

Enforcement of PECR

Civil enforcement: The Information Commissioner (“IC”) has power to enforce the PECR by serving an enforcement notice in the same way as enforcement of the Data Protection Act. In addition, the IC’s augmented powers of imposing monetary penalties of up to £500,000 in serious cases of data protection infringements apply also to the PECR. see the section on data protection. (PECR reg.31).


A person who suffers damage by reason of any contravention of any of the requirements of the PECR by any other person is entitled to bring proceedings for compensation (PECR reg.30).  There is a due diligence defence to such a claim.

Criminal enforcement: the PECR does not create any criminal offences.

[Page updated: 29/01/2017]

 

 

More information>


The basics: contract for sale
Legal tender
Limitation and exclusion clauses
Sale of goods
Supply of services
Inertia selling to businesses
E-commerce
Sales to consumers
Unfair terms
Sales to consumers, distance selling
Doorstep selling
Marketing and advertising regulation    introduction
Advertising Codes
Advertising to businesses and    comparative advertising
Advertising to consumer regulations
Approved trader schemes
Direct marketing by telephone, email,    text message, fax and post
Data protection in relation to marketing