Last month the Information Commissioner’s Office (ICO) published new detailed guidance for businesses on how to make direct marketing calls in a legitimate, lawful way. Later it published similar online guidance on electronic mail marketing.
What is direct marketing?
The legal definition is broad – “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals” – and so it covers all types of advertising, marketing, or promotional material.
When a business makes a service call to existing customers, which includes promotional content, then it needs to comply with the rules, since the guidance is clear that such calls also count as direct marketing.
What rules apply to unsolicited live direct marketing calls?
For most types of live direct marketing calls (stricter rules apply to calls about claims management services and pension schemes) unsolicited calls to people and businesses can be made if:
- they have not objected to your business’s live marketing calls (you must not call someone who told you they do not want your marketing calls); or
- the number is not listed on the Telephone Preference Service (TPS), or in the case of corporate subscribers the Corporate Telephone Preference Service (CTPS).
Mandatory information to provide if making live marketing calls
If making any live marketing call (whether solicited or unsolicited) a business must
- say who is calling (e.g., the name of your organisation);
- provide contact details or a Freephone number for your organisation if asked; and
- display your number (or a valid alternative contact number) to the person receiving the call.
Using a telephone marketing list?
If you get a telephone marketing list from a third party, who say those on the list have consented to calls, you are required to make sure that the consent is valid.
If the list provider claims to have checked the list against the TPS or CTPS, the ICO guidance recommends you should make sure that this happened recently. (It can take 28 days for a TPS or CTPS registration to become active. If they did the check more than 28 days ago, then you may inadvertently call numbers where the registration has become active.)
Who is responsible and at risk of fines for non-compliance?
Responsibility for compliance rests with the ‘caller’ or the ‘instigator’ of the call, which covers situations where a business instructs someone else to make calls on their behalf.
What are the rules on direct marketing by electronic mail?
These rules are not limited to electronic messages which involve use of personal data. You do not need to know the name of the recipient for some of the electronic mail marketing rules to apply.
The more demanding rules on electronic mail marketing apply only to individual subscribers – people, but also some types of businesses, such as sole traders and some types of partnerships. But electronic mail marketing rules do apply also to corporate subscribers (for example, companies, limited liability partnerships, and Scottish partnerships).
Information you must provide if sending marketing by electronic mail
If you send marketing by electronic mail to either individual or corporate subscriber, irrespective of whether the message is solicited or unsolicited, you must:
- not disguise or hide your identity; and
- provide a valid contact address for people and businesses to opt-out or unsubscribe.
Additional rules – which apply to individual subscribers only
Your business can only send direct marketing by electronic mail to individual subscribers (which includes sole traders and some types of partnership) if:
- you have consent; or
- you can meet all the requirements of the ‘soft opt-in.’
You can send electronic mail marketing to a corporate subscriber (e.g., a limited company) without complying with those additional requirements.
How do we use the soft opt-in?
This enables a business to send electronic mail marketing to existing customers. But to use the soft opt-in instead of consent, your business must meet all five requirements.
- Your business (not a third party) obtained the contact details;
- In the course of a sale (or negotiation of a sale) of a product or service;
- You are marketing your own similar products and/or services;
- You provided the individual an opportunity to refuse or opt-out when you collected the details; and
- You give an opportunity to refuse or opt-out in every subsequent communication.
Can we use contact details which are publicly available (e.g., on the internet) to send marketing by electronic mail?
‘Publicly available’ can refer to contact details taken from various sources (such as websites, professional networking and social media platforms, and other offline sources, such as business directories or conference attendance lists).
For corporate subscribers, yes – your business can use their contact details to send marketing by electronic mail. But remember not disguise or hide your identity and provide a valid contact address so they can opt-out or unsubscribe from any further contact.
As for individual subscribers – just because a person’s contact details (e.g., email address or mobile numbers) are publicly available, it does not mean they consent to receive direct marketing. The rules summarised above still apply. In order to contact individual subscribers, your business must have consent.
The soft opt-in cannot apply to an individual subscriber’s contact details collected from publicly available sources. Why? They have not been gathered during a negotiation or sale by your business, and to rely on ‘soft opt-in,’ all five requirements must be met (as explained in points 1 and 2 above).
And remember, ‘individual subscriber’ rules apply to sole traders and some types of partnership also.