Who: The DMA (UK) Ltd
When: November 2013
Law stated as at: September 2013
The DMA has written a letter to the UK Information Commissioner’s Office (ICO) asking for clarification on certain parts of its Direct Marketing guidance published in September 2013.
Indirect/third party consent
In the new guidance the ICO has stated that in its opinion the general rule is that individuals cannot give consent via a third party to receive direct marketing via telephone, email and SMS. There are two exceptions to this general rule, ICO says:
1) where the third party is specifically named by the first party collecting the individual’s details or
2) where the third party falls into a sector, such as travel, which is specifically mentioned by the first party.
The ICO also has a new rule of thumb that the third party should use the contact information within 6 months of the date the first party collected the information. Organisations can use data more than 6 months after it was first collected but they will have to justify to the ICO their reasons for doing so if the ICO follows up on a complaint.
This could have a large impact in the way the list industry collects consent for third party marketing by email, SMS and telephone. The DMA is asking the ICO to clarify how this will work in practice and where the six month time limit came from.
The ICO quite rightly also believes that if a customer agrees to receive direct marketing this will only last for a limited period. A significant change in circumstances could bring this agreement to an end. The DMA would like the ICO to clarify what it considers to be a significant change in circumstances. For example a change of ownership of an organisation may not always be a significant change in circumstances if the customer continues to receive marketing about the same products and services. The DMA would like to explore with the ICO how an agreement to receive direct marketing can be re-validated in the case of a change in circumstances.
Pre-ticked opt-in/opt-out boxes
The ICO makes reference to their use in the Guidance. The DMA thinks that some practical examples of how they are used would help to clarify the Guidance.
The Guidance contains some very logical and legalistic statements as to what is solicited and unsolicited marketing. Again this is an area where more examples would help to clarify the ICO’s view. The DMA accepts that organisations need to have clear wording on their data collection statements, so consumers know what they are signing up to.
Why this matters:
So far the ICO has responded positively to the DMA’s comments. It is important that the Direct Marketing Guidance is as clear as it can be so organisations can understand the ICO’s position.