Following the substantially updated and revamped new edition of the CAP “UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing,” effective from Wednesday 1 September 2010, the UK’s Direct Marketing Association has updated its own code. Hannah Willson highlights some key changes.
Topic: Direct marketing
Who: Direct Marketing Association
Where: UK
When: 16 July 2010
Law stated as at: August 2010
What happened:
The Direct Marketing Association (DMA) has issued a new code of practice which is to take effect from 1 September 2010 (the "DMA Code"). The new DMA Code will be the 4th edition and includes significant changes from the previous edition, which was published 7 years ago in 2003.
The DMA is Europe's largest trade association in the marketing and communications sector. Its aim is to raise consumer confidence and trust in the direct marketing industry by implementing best practice guidelines and DMA awards. The DMA Code has no statutory authority and is only binding on its members but there is an independent self-regulatory body – the Direct Marketing Commission – that enforces the DMA Code.
Amongst the most significant changes that can be seen in the new DMA Code are those relating to data protection issue for children as well as 'greenwashing' claims.
Children and data protection
This area had remained a point of confusion and ambiguity with the DMA being seemingly at odds with provisions of the CAP Code (which is binding on all UK marketers) particularly in relation to the collection of data from children. The new DMA Code has now to some extent been brought into line with the recent changes to the CAP Code (and there is no coincidence that these are also coming into effect on 1 September 2010) but as we point out below, there are still inconsistencies.
The old DMA code used the term "minors" and defined this as ""those less than 18 years of age" whilst in the "On-line marketing" section "children" were similarly defined, with those "under 16" being out of bounds for various activities such as websites collecting their personal data without prior verifiable and explicit parental consent.
In the new DMA Code the defined term "minors" has been dropped altogether and replaced by "children and young persons". "Children" is defined as "those aged 18 years and under" (surely some mistake here as 18 is the age of majority and elsewhere in the new DMA Code-at 19.22- "children" is defined as "those under 18 years of age.") and "young persons" is defined as "those of 16 and 17 years, unless otherwise specified."
Section 8.14 has done away with the previous distinction between the collection of data online and offline. There is now one rule – no personal data should be collected from children under the age of 12 without the 'secure, verifiable and explicit' consent of their parent or guardian.
This "under 12s" rule follows the approach adopted many years ago by the Information Commissioner's Office in its published guidance and belatedly adopted by CAP in its recently revised CAP Code, which previously made no express reference to collection of personal data from minors.
So here there is alignment between the new DMA and CAP Codes, but there are still material differences on the issue of children, including in the area of collecting information from children about third parties, viz:
- The revised version of the CAP Code states at 10.16 that "Marketers must not knowingly collect personal information about other people from children under 16 (the "under 16" is of itself unnecessary as the introduction to the "Children" section 5 states clearly "For the purposes of the Code, a child is someone under 16)".
- In contrast, 8.25 of the new DMA Code states "Members must not attempt to obtain information from children and young persons about other persons (e.g. parents) for marketing purposes."
- So for DMA members life is stricter on three counts
- Firstly the ban applies to all those who are 18 or under instead of under 16s
- Secondly the ban also extends to any information, not just "personal information," about third parties
- Thirdly the ban applies regardless of intention since "knowingly" does not apply to DMA members.
- On one count life is easier in that whereas the CAP Code ban on collecting information about third parties applies to any personal information, regardless of the purpose of doing so, the new CAP Code in contrast applies only to information collected "for marketing purposes."
A new appendix (appendix 2) relating to marketing to children has also been added that pulls out of the substantive Code most if not all the provisions focusing on that area and aims to help DMA members to understand their obligations when considering direct marketing campaigns to those under the age of 18. This appendix covers areas such a mobile marketing and interactive TV and provides both guidelines for best practice as well mandatory obligations (for its members).
Greenwashing
Green claims in marketing are becoming increasingly more regular in marketing campaigns and the new section in the DMA Code is much overdue. A DMA statement said: "[f]or the first time the DM Code sets out a series of guidelines concerning the use of data hygiene, making environmental claims in marketing materials, sourcing sustainable paper, certification in environmental standards such as PAS 2020, adhering to a corporate environmental policy and using recycling messages on printed materials."
The additional provisions in the DMA Code are a further example of the DMA falling in line with the CAP Code that (from 1 September) will require marketers making green claims to provide "a high level of substantiation" for those claims, and the environmental claims must be based "on the full life cycle of the advertised product, unless the marketing communication states otherwise".
The DMA Code also addresses the corporate practices behind the marketing meaning that it will not only be the message that must be backed up but the medium in which that message is given.
Other key changes
Key changes:
- New glossary section
- Update on FSA rules
- The Your Choice Preference Service for unaddressed door-to-door mail
- The Information Commissioner's new enforcement powers.
Why this matters:
Industry self-regulation plays an important role, without it there would be a greater threat of statutory controls.
David Metcalfe, chair of the DMA said: "Government and regulators in the UK and European Union exert a constant pressure on the marketing industry to deliver effective and accountable standards of consumer protection. The best way to head-off onerous statutory controls is to maintain an effective self-regulatory system. The DMA through the DM Code of Practice does an exceptional job in achieving this. This new addition of the Code has been updated in include all recent changes to relevant legislation, including data protection, consumer credit, prize draws, telemarketing and consumer protection."
With the effective date of the new Code being 1 September 2010 there is a short grace period for its members to ensure they are in compliance, however it should not require too many rigorous changes due to most changes bringing the position in line with the, mandatory to all, CAP Code.
The new DMA Code is now only available in electronic format online and can be viewed here.
