Legal advice: Direct marketing

By David Clifton of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

Any individual involved in business, be they the landlord of a local village pub or the director of a nationwide chain of pubs, will consider the marketing of their business at some point.

The Privacy and Electronic Communications (EC Directive) Regulations 2003 came into force on December 11, 2003 and have important implications for sending unsolicited direct marketing. It is, therefore, crucial to be aware of what is now prohibited under the regulations.

Emails and SMS​

The regulations prohibit the sending of unsolicited direct marketing emails and SMS text messages unless the prior consent of the individual recipient has been obtained.

This represents an important change and means that businesses must now obtain opt-in consent from individuals for the use of their electronic contact details. There is an important exemption which provides that it is permissible to send direct email or SMS communications where a business has "an existing customer relationship" with the individual.

The definition in the regulations of an existing customer relationship states that, where the electronic contact details are obtained in the course of a sale or negotiations for a sale, the details may be used for the direct marketing of that business' own similar products or services. Therefore, for details to be used legitimately, the sale never needs to complete, and any personal data obtained from a customer simply asking for a quote may be used. This exemption may be relied upon provided that the customer has been given the opportunity to object, free of charge and in an easy way.

A best practice policy would therefore be to provide customers with the opportunity to opt out in every communication.

Faxes​

The regulations restate the provisions set out in the Telecommunications (Data Protection and Privacy) Regulations 1999. It is prohibited to send unsolicited marketing faxes to individuals without the individual's prior consent and to businesses if that business has notified the caller that it does not wish to receive the communication. Both individuals and businesses may register with the Fax Preference Service (a service offered by OFCOM) that they do not wish to receive unsolicited faxed communications. If such a notification has been made the subsequent transmission of direct marketing communications is prohibited under the regulations.

Telemarketing​

Similarly, individuals may register with the Telephone Preference Service and such a registration serves as notification that direct marketing calls to that line are not permitted. From June 23, 2005 the regulations will be amended to allow corporate entities to register their telephone numbers as well.

In addition, the use of automated calling systems for direct marketing purposes is not permitted under the regulations unless the individual or business has given prior consent to the use of the telephone line.