With new controls over email marketing and much more due to be with us on 11th December 2003 and official guidance from the Information Commission expected in November, the DMA has kept the pot boiling with its own ‘summary’ of the new rules.
Topic: Digital marketing
Who: The Direct Marketing Association
When: October 2003
The Privacy and Electronic Communications (EC Directive) Regulations implement in the UK the EU Privacy and Electronic Communications Directive. As previously reported on marketinglaw, they significantly change the legal landscape for digital marketers in a host of areas. The new rules come into force on 11 December 2003.
The Information Commission, which is to be the prime enforcer for the new regulations, plans to introduce guidance on the new regulations around mid November 2003. In the meantime, in response to demands for further clarification, the Direct Marketing Association has produced some guidance notes on the new rules, although it will produce further, definitive guidelines in late November or early December, once the Information Commission’s stand-point on the interpretation of the Regulations is clear.
e-mail and SMS marketing
Here we will focus on what the DMA summary has to say about the new rules for e-mail and SMS marketing.
One aspect the DMA summary underlines is the need not to disguise or conceal the identity of the person on whose behalf the communication has been sent. If, for example, John Smith Limited outsources to a third party the sending of its e-mail, “John Smith Limited” should in the view of the DMA appear in the “From” box of the e-mail.
The e-mail must also supply a valid address to which the recipient of the e-mail or SMS message may send an unsubscribe request. The Regulations do not make it crystal clear whether simply a postal address is sufficient. However, a postal address is required under the E-commerce Regulations and the DMA’s view is that a company should provide in every e-mail message both a return e-mail address or SMS number AND a postal address where an unsubscribe request can be sent.
On the question of getting customers to subscribe, the DMA reminds us that a person giving “consent” to the use of his data is defined in the 1995 Data Protection Directive as “any freely given, specific and informed indication of his wishes by which he signifies his agreement to personal data relating to him being processed”.
Clearly, therefore, this requires some positive act on the part of the consumer. This means, for example, that if e-mail address or mobile phone number holders want to share that data with third parties (including other companies within their own group) they will have to get their customers to subscribe/opt-in by some positive act.
On the question of the soft “opt-in” exception to full opt-in for existing customers, the DMA reminds us that the e-mail address or mobile number must have been originally obtained in the context of “a sale or negotiations for the sale” of a product or service. Accordingly it is not necessary to show that a sale or purchase was actually concluded, but there does have to have been a “direct relationship” of some kind between the individual and the marketer. For instance, the DMA expresses the view that if an individual has subscribed to a free newsletter via e-mail they would classify as an “existing customer” for the purposes of the Regulations.
Also on soft opt-in, the existing customer can only be sent information about “similar products and services” of the company which obtained the e-mail address/mobile phone number in the first place. The DMA points out that “similar products and services” is not defined in the Regulations or the Directive, although the DTI consultation paper of March 2003 expressed the view that this condition “was intended to reinforce the principle that opt-out consents should only apply to targeted marketing where the products and services concerned will be of interest to the addressee”.
The DMA interprets this to suggest that the goods and services which the e-mail or SMS is marketing only have to be “similar” to products of the sender of the e-mail which were brought to the attention of the individual at the time that they first supplied their e-mail address or mobile phone number. Accordingly the DMA suggests that when customers are first invited to supply their e-mail address or mobile phone number, they should be informed of the full range of products available from the marketer, to give the marketer maximum scope for subsequent e-mail marketing activity.
An alternative interpretation of the Regulations and the Directive is that the goods or services which are the subject of subsequent e-mails or SMS must be “similar” to what customers were actually buying or negotiating to buy at the time that they first supplied their address/number.
Marketinglaw currently favours this latter view, but it will be interesting to see what position is taken by the Information Commission on this in its guidance of November 2003.
As regards the need to be able to unsubscribe from receiving further e-mails or SMS “free of charge in an easy manner”, the DMA reminds us that a premium rate return SMS number will clearly be prohibited although otherwise, the cost of the means of communication used to send the unsubscribe message will, according to the Regulations, be disregarded.
Regarding legacy lists, the DMA points out that the Regulations contain no specific provisions or transitional arrangements. This means that if there is any doubt as to whether individuals on an existing database as at 11 December 2003 are “existing customers” within the new rules, the only solution is to ask them to take a positive step to subscribe to receiving marketing messages via e-mail or SMS in the future.
So far as buying third party lists of e-mail addresses is concerned, the DMA says that this is still permissible under the new Regulations, but individuals must beforehand have expressly subscribed to having their details passed on to third parties. List purchasers or users must therefore carry out due diligence to ensure that this was what occurred when the list provider first collected the data.
Why this matters:
The DMA’s commentary and the accompanying proposed amendments to their Code, are helpful in developing a greater understanding of the precise impact of the new Regulations. It is also clear that the publication of the Information Commission’s own guidance will be a crucial stage in this process and marketinglaw will be issuing a special report once this has appeared.