The implementation of the Privacy and Electronic Communications (EC Directive) Regulations 2003, which govern electronic marketing - for example, e-mails and text messages - was a big change for business. However, regulation in this area has been around for some time, and it is vital to remember that all marketing which involves using personal data is also governed by the Data Protection Act 1998. There is a wide variety of obligations to take into account, but the warnings below form a good starting point for data-marketing compliance:
Any marketing will need to be carried out in accordance with the data-protection principles found in Schedule 1 of the act. The first principle requires that all personal data be processed fairly and lawfully. The individuals concerned must be informed of how the processing will take place, including by whom, and why. This "fair processing" information could be placed on a website, or on a form which collects personal information, but should be given to all recipients of marketing by whatever media. Remember to look ahead - things change, and if you want to use this data for purposes that you have not previously informed the individual about, you will need to get their consent again. There are seven other principles, ranging from an obligation to keep information accurate and up-to-date to keeping it secure, and they include a restriction on sending data outside Europe.
Keep good records
The act gives individuals the right to request that their personal details are not used for direct marketing. This covers any kind of direct marketing, provided you are using personal details to send it. In other words, it will apply to an e-mail sent to an address containing someone's name, but not to a mailshot addressed to "the occupier".
The regulations go one step further in making it a legal requirement for businesses to obtain an individual subscriber's consent, an "opt-in", before sending them unsolicited direct marketing by e-mail or text message (SMS) - unless they fall within narrow exceptions, ie, marketing similar goods and services to existing customers. If your records do not adequately reflect the consents or requests to stop marketing that you have received, you may find that your lists are, in the long term, not worth the paper they are written on.
Know your customers
Debate still rages over what constitutes an "individual subscriber". "An individual" means any living individual, including, in England, unincorporated bodies such as partnerships. "A subscriber" is "a person who is a party to a contract with a provider of public electronic communications services for the supply of such services". The position is clear in the case of generic addresses such as email@example.com. But if the e-mail address clearly comes from a corporate entity but contains the individual's name, such as firstname.lastname@example.org, you need to consider whether or not they are a subscriber. In most circumstances the corporate entity will be the subscriber, as it pays the bills for the service which allows me to access my e-mail. But what if, for example, I am accessing my e-mail from home using my own internet connection? If in doubt, comply with the most restrictive regime - that of the individual.
Keep tabs on your preferences
Under the regulations, marketers must regularly screen their marketing lists against two preference services, for telephone and fax marketing. Individual and corporate subscribers can sign up, and marketers are required to cease to send them unsolicited direct marketing within 28 days of being added to the register. The right of corporate subscribers to sign up to the telephone preference service took effect only at the end of June 2004. There are also e-mail and postal mail preference services, against which businesses can screen their mailing lists to ensure that they are not sending e-mail or postal marketing to people who do not wish to receive it. However, these are voluntary schemes, and there is no legal obligation to screen against them.
Remember the code
The regulations are further backed up by the Committee of Advertising Practices Code. The code was recently amended and in some regards sets a stricter standard than the regulations. While it allows marketing to be sent to corporate subscribers, such marketing must be only about business products. Although the code has no legislative force, the adverse publicity that results from published decisions is often enough to encourage compliance, and a ruling can be made as the result of just one complaint. In addition, trade associations and professional bodies can withdraw valuable trading privileges that they offer their members.
Gayle Trigg is a solicitor in the IT and e-commerce group at national law firm Eversheds.