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Direct Marketing Code of Practice Consultation

View profile for Matt Rowley
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Direct Marketing Code of Practice Consultation

The introduction of General Data Protection Regulation (GDPR) in 2018 saw many consumers anticipate a meaningful reduction in the spam hitting their email inbox. In parallel, many organisations radically reduced the size of their marketing databases as a consequence of seeking brand new explicit consent from customers and others to receive adverts, offers and updates.

Despite all the hype and activity, a great deal of confusion still surrounds the relationship between GDPR and direct marketing as unwanted junk mail continues to circulate and businesses remain unclear about the scope and limits of different types of ‘consent’.

However things are, hopefully, going to become a little clearer with regards to what organisations and the public can expect as the Information Commissioners Office (the ICO) pushes ahead with the development of a Direct Marketing Code of Practice. In January 2020, the ICO launched a consultation, open to data controllers and data subjects alike, with regards to its draft Direct Marketing Code of Practice.

The consultation ends on 4 March 2020 – not a long time for a Code of Practice that will be regulation in all but name. The draft itself specifically states that ‘If you do not follow this code, you will find it difficult to demonstrate that your processing complies with the GDPR or PECR (Privacy and Electronic Communication Regulations)’. However, one of the most useful pieces of guidance for many businesses will be the clarification of ‘consent’ vs ‘legitimate interests’ as the lawful purposes for direct marketing.

Many commentators have predicated the gradual decline in ‘legitimate interest’ as a lawful purpose for direct marketing, expecting a move towards the much higher test of requiring an individual’s express and fully informed consent prior to sending them marketing material – something that will significantly damage the impact of direct marketing for many businesses operating with ‘cold approach’ models; but the draft Code of Practice expressly acknowledges ‘legitimate interest’ as a lawful purpose for direct marketing, indicating that there is no current intention of the ICO to attempt to push for consent as the only option.

It also provides clarification on the consent requirement that does exist in respect of email marketing (as opposed to postal marketing) under the PECR and how the ‘soft-opt in’ consent should work in practice and be implemented by businesses. It does not, however, provide any comfort to charities for whom the ‘soft-opt in’ form of consent does not apply.

So, while the draft Code of Practice will perhaps provide some comfort to business it is perhaps not going to go as far as many people would like in terms of reducing the volume of direct marketing received by individuals.

The consultation is open until 4 March 2020 and can be found here:

https://ico.org.uk/about-the-ico/ico-and-stakeholder-consultations/ico-consultation-on-the-draft-direct-marketing-code-of-practice/

Matt Rowley is a specialist in regulatory compliance and you can follow this link to find out more about how he can help regulated businesses and individuals

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