ICO paves way for public sector to ramp up DM activity

Government departments and local councils could soon be ramping up their direct communications – promoting anything from healthy lifestyles to household recycling – following the release of new guidance which some claim could trigger a barrage of public sector spam.

While the term “direct marketing” might have fallen out of favour with industry body the DMA, as far as everyone else is concerned – including the Information Commissioner’s Office – direct marketing is not only alive and kicking but its use is also set in law.

The new ICO resource is aimed at clearing up any confusion over how direct marketing legislation, under the Privacy & Electronic Communications Regulations (PECR), affects public sector messaging.

According to the regulator, if communications sent by public authorities to members of the public are “necessary for your task or function”, then they do not constitute direct marketing at all.

One example cited is that a message from a local authority about a new household service for collecting recycling would not be direct marketing, but a message inviting people to sign up for a paid-for garden waste collection service would be.

Consequently, if the Department of Health & Social Care wanted to text consumers to urge them to lose weight or eat more healthily, that would be allowed.

The same rules would apply for messages promoting road safety from the Department for Transport, recycling from the Department for Environment Food & Rural Affairs, sports and culture from the Department for Digital, Culture, Media & Sport and employment from the Department of Work & Pensions.

Only messages promoting services that would have to be paid for by the user count as direct marketing.

And, given the Government’s penchant for advertising – Nielsen figures recently revealed it outspent everyone last year, splashing almost £164m – the possibilities seem endless for direct communications that are “necessary for your task or function”.

While some have warned this could lead to a barrage of public sector messages, under the UK GDPR individuals do have the right to object to their personal data being processed in certain circumstances and the right to withdraw their consent.

However, the ICO guidance states: “If a promotional message is necessary for your task or function and you are relying on the public task lawful basis, the right to object is not absolute.

“This means you may be able to continue sending the messages if you can demonstrate ‘compelling legitimate grounds’ to do so.”

ICO director Anthony Luhman said: “Our new guidance will help you understand how to send promotional messages in compliance with the law. Done properly the public should have trust and confidence in promotional messaging from the public sector.

“It’s important to be transparent about what you intend to do with people’s personal data including telling them about the types of messages you want to send.”

But Martin Sloan, IP, tech and data partner at law firm Brodies, reckons the charity sector could feel hard done by from the move.

He commented: “The new guidance applies only to public authorities. That may frustrate charities and other third sector organisations.

“Retailers and other businesses can rely on the ‘soft opt-in’ exemption under ePrivacy laws for marketing to existing customers. However, that exception applies only to the sale of goods or services, which means it isn’t available to charities when contacting previous supporters for fundraising purposes or to tell them about what the charity has been doing.

“While the background to the new guidance is not clear, those in the third sector may feel aggrieved that the ICO did not take the opportunity to look at the definition of direct marketing in the context of that sector too.”