You really must not spam
The UK and EU has regulations which are supposed to cut down on the amount of unsolicited spam and marketing phone calls we receive, but an increasing number of companies seem to ignore that rule and believe they are conducting legitimate marketing. The ICO has issued new guidelines which addresses direct marketing.
It is ten years now since the Privacy and Electronic Communications Regulations (PECR) came into force, but there are still many organisations which are unaware of their responsibilities, or increasingly find creative ways to argue that the people they market to have given implied consent. The fact that there is apparently little enforcement of the regulations and little penalty other than being asked not to do it again also encourages this behaviour.
The Information Commissioner's Office, (ICO), has teamed up with Ofcom and announced a joint action plan to review the Telephone Preference Service (TPS) and to trace and target nuisance marketing calls and SMS messages. The biggest challenge here though is that increasingly these calls are placed from overseas operators, beyond the reach of the regulator. The ICO has also published an updated 45 page booklet on the interpretation of the PECR regulations which sets out clear notes of what organisations need to do to be compliant with PECR. Website operators should take note.
How many websites and online shops do you see which pre-tick the mailing list opt-in box, and therefore require you to opt-out if you want to escape their junk mail? Those website operators would do well to note that the guide says "organisations cannot rely on implied consent as a euphemism for ignoring the need for consent, or assuming everyone consents unless they complain. Even implied consent must still be freely given, specific and informed, and must still involve a positive action indicating agreement such as clicking on a button, or subscribing to a service. Organisations cannot assume consent from a failure to opt out."
I would like to see this principle enshrined in all consumer legislation. Far too many websites and services now feel obliged to follow the American model and have a tortuous terms and conditions page written in a language that even trained lawyers would struggle to understand. When a website uses obfuscating tactics, how can it claim to have informed consent?
Consider too how many online shops make it mandatory to sign up for an account with them before you can make a one-off purchase, or even, in some cases, before you can start shopping with them. These sites typically claim that a "benefit" of signing up is regular mails to keep you informed about new products and offers. The ICO guide makes it clear that consent to marketing communications must be freely given. You cannot make it a condition of using a service or completing a transaction.
The ICO Direct Marketing Guide is free and available online as a PDF download. It should be compulsory reading for anyone involved in direct marketing and customer communications.
For an example of an online shop which we believe is fully compliant with PECR and other consumer legislation, see Bluebell Cottage, a garden centre which sells plants online. You have to positively tick a box if you want to be added to the mailing list, it spells out in plain english what your contact details will be used for, and all this information is right where you need it, not buried inside hostile terms and conditions small print.
25th September 2013
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