DMC demands greater clarity on 'grey areas' of data law

The Data & Marketing Commission has waded into debate over firms using illegal email messaging to try to get opted out customers to opt back in, demanding greater education about what is allowed and what is not.

The DMC – the organisation which polices the DMA membership – has made the call in its annual report, published this week, which also calls for the greater clarity around the use of legitimate interests for marketing.

The tightening of the law on service messaging – which falls under the Privacy & Electronic Communications Regualtions (PECR) – follows a number of high profile cases in which leading brands have been censored for contacting customers who are off-limits.

Honda and Flybe were the first brands to be caught back in 2017 but since then they have been joined in by Morrisons, BT, Royal Mail, Amex, We Buy Any Car, Sports Direct, Saga, The Conservative Party, and the Unite Union.

Late last year Virgin Media was found guilty of the same offence following a single complaint from an email campaign which went to over 450,000 customers.

DMC chief commissioner Amerdeep Somal said that a key challenge for regulators this year must be to boost industry knowledge surrounding grey areas of the GDPR, including use of legitimate interests and service messages, although the latter does not directly fall under that regulation.

She added: “As our industry evolves so, too, must the role of regulators like the Information Commissioner’s Office and DMC. We must bring education to the forefront and share learning from our investigations to improve industry practices. This will help create an environment where businesses and marketers are encouraged to learn and increase the flow and exchange of information.”

When it comes to complaints received by the DMC, the organisation reveals that issues around data management and privacy were the biggest concerns in 2020/21.

In the year from July 2020 to June 2021, the DMC reported a rise in complaints against businesses across the data and marketing sector – up 33% year-on-year (from 63 to 84).

However, this figure is miniscule when compared to the ICO; it received 36,607 new data protection complaints during 2020/21.

Even so, the DMC investigated fewer complaints involving members of the DMA during this period – falling by 30% when compared to the previous year’s total. Member complaints amounted to a fifth of the total number of complaints (19%). Some 75% of these were consumer complaints and 25% were about B2B issues.

The majority of complaints relate to data, privacy and quality (64%), with contractual (18%) and customer service (18%) problems making up the remainder.

Somal said: “Since the introduction of the GDPR, we have seen complaints against DMA members gradually lessen. A key reason for this is likely down to an increasing awareness by member organisations of their obligation to be transparent, to be clear, to be respectful – subsequently more customers now recognise that their data is valued and protected.”

The largest proportion of complaints (81%), which involved organisations that are not members of the DMA, were referred by the DMC to other statutory or self-regulatory bodies.

However, in some cases, particularly where they involved consumers unable to unsubscribe from unwanted communications, the DMC did reach out to the business to provide a reminder of its legal commitments and request that it unsubscribe the individual.

In the coming year, the DMC said it aims to become an ICO accredited Independent Monitoring Body with a clear remit to enforce a new GDPR Industry Code, through the registration of organisations who sign-up to the Code and the investigation of complaints.

Somal concluded: “Treating customers with empathy, authenticity and giving them a personal experience will impact customer sentiment in a positive way and will encourage the industry to use big data and other technology tools as a force for good. Ultimately, we all must strive to improve trust in the industry and build a better experience for the customer.”