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Law for Business

Knowhow - guidance - precedents

19 NOV 2012

Electronic Marketing

Clarkslegal

Electronic Marketing

 The Information Commissioner's Office recently listed on its website, firms over which it had concerns regarding unsolicited marketing calls. While these firms are reported to be working with the ICO to resolve the matter, the list acts as a stark reminder of the power of the Commissioner to supervise organisations' marketing techniques. Considering that the ICO can issue fines of up to £500,000 it is prudent to review the dos and don'ts of electronic marketing.

 

Consent

 The general rule is that you can only carry out unsolicited electronic marketing if the person targeted has given their permission to be contacted. However, a 'soft opt-in' exception applies if all the following conditions are met;

  • a person's details are obtained in the course of a sale or negotiations for a sale of a product or service;
  • the messages are only marketing similar products or services; and
  • the person is given a simple opportunity to refuse marketing when their details are collected, and if they don't opt out at this point, are given a simple way to do so in future messages.

 

The Direct Marketing Association operates the Telephone Preference Service (TPS) and Fax Preference Service (FPS) which allow people to register their numbers to opt out of receiving unsolicited calls or faxes. Senders are prohibited from sending messages to individuals or organizations that have registered with these services.

 

Sender's Identity

 A sender must tell the recipient who they are and provide a valid contact address. While organisations do not need to grant consent to be contacted, the sender must still identify itself and provide an address.

 

Good practice

 The ICO has recommended the following approach:

  • Try to go for permission-based marketing as much as possible.  This way you are only contacting customers who want you to contact them. 
  • Provide a statement of use when you collect details. Put this in an obvious place or make sure it has to be read before individuals submit their details. 
  • Make sure you clearly explain what individuals' details will be used for.  For example, explain to individuals why you might use their email address in the future. 
  • Do not have consent boxes already ticked. 
  • Provide a simple and quick method for customers to opt out of marketing messages at no cost other than that of sending the message. 
  • Promptly comply with opt-out requests from everyone, not just those from individuals. 
  • Have a system in place to deal with complaints about unwanted marketing.
  • When you receive an opt-out request, suppress the individual or company details rather than deleting them. This way you will have a record of who not to contact. 

 

Mishail Watters

 

 

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