ICO updates marketing guidance amid legal threat

legal 2The Information Commissioner’s Office has issued new direct marketing guidance, amid proposals to put the measures on a statutory footing, which could see the worst offenders dragged through UK courts.
The new measures (available to download) have a greater focus on charity fundraising, following last year’s backlash against the industry.
In a blog post, ICO head of policy delivery Steve Wood said: “It is important to remember that the law requires charities to follow the same rules as any other organisation, but the high-profile difficulties some have found in meeting that requirement has meant we’ve provided more advice to this sector within the guidance, including specific examples.”
More broadly, the updated guidance gives more direction around third-party consent. Wood added: “We’ve seen organisations getting this wrong, and facing enforcement action as a consequence. Our guidance makes clearer than ever that phrases like ‘are you happy to receive marketing from selected third parties’ will rarely be likely to demonstrate the law is being followed.
“We’ve also included detail around consent being freely given. It isn’t within the law to unduly incentivise people to give their consent to marketing calls, nor typically to require consent to marketing as a condition of subscribing to a service.”
However, Wood does concede that some will have been hoping for more from the guidance.
He added: “We know some people would like to see entire guidance documents dedicated to specific sectors, for instance, but this misunderstands the law. The Privacy & Electronic Communications Regulations apply equally to any and all organisations who are engaging in direct marketing activity via electronic means, regardless of their sector. To create several different strands of guidance for several different sectors would create a confused picture.”
Wood also confirmed proposals, first revealed by Baroness Neville Rolfe at the recent DMA Data Protection Conference, to issue the guidance as a Code of Practice with specific statutory recognition, which would allow it to be considered by the courts. Such a move would need legislative change, as well as a full consultation before going before Parliament.

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