The New Statutory Direct Marketing Code of Practice
03 May 2017
Digital Economy Act 2017
Proposed amendments to the Digital Economy Act have been pushed to one side and he Act rushed through before parliament was dissolved. The new legislation, which has been labelled “disappointing”, has been passed without a strategic plan for the Digital Economy, without full scrutiny and debate, and without the recommended minimum internet speed and infrastructure requirements.
Direct Marketing Code of Practice
While these may be the main talking points, there are changes for marketers, with a statutory marketing code of practice. Because direct marketers would be obliged to follow the code, it will be easier for the ICO to investigate and take action. One of the new GDPR requirements is for regulators to introduce more effective enforcement of data protection laws and this change goes some way to achieve that.
A new direct marketing code was proposed in February 2017 (Digital Economy Bill (HL Bill 122), section 102) and has now been passed, inserting a new section into The Data Protection Act 1998. The new section is: "52AA - Direct marketing code”.
The Data Protection Act, 52AA - Direct marketing code
1) The Commissioner must prepare a code of practice which contains
a) practical guidance in relation to the carrying out of direct marketing in accordance with the requirements of this Act and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426), and
b) such other guidance as the Commissioner considers appropriate to promote good practice in direct marketing.
2) For this purpose “good practice” means such practice in direct marketing as appears to the Commissioner to be desirable having regard to the interests of data subjects and others, and includes (but is not limited to) compliance with the requirements mentioned in subsection (1)(a)
3) Before a code is prepared under this section, the Commissioner must consult such of the following as the Commissioner considers appropriate
a) trade associations (within the meaning of section 51);
b) data subjects;
c) persons who appear to the Commissioner to represent the interests of data subjects.
4) In this section “direct marketing” has the meaning given by section 11(3) - “the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals.”
What This Means for Marketers
At present companies are able to choose not to follow the ICO’s Direct Marketing Guidance, but this will change. Companies will be forced to follow the code which promotes good practice in accordance with (but not limited to) current regulations. That is quite a wide definition.
Marketers are likely to see GDPR-levels of compliance for data processing and marketing ahead of May 2018, meaning that unambiguous and provable consent isn't best practice; it's the minimum standard.
Action To Take Now
The ICO are already stepping up their enforcement regime, but they are also working fast to produce a wide range of guides. Make these your first port of call. I've written a quick how to guide for marketers to help get you started.
For additional clarity and practical guidance, the DMA and a wide range of best practice commentators are creating self-help guides and running training courses. Here are some resources which I recommend. If you have any more to suggest, please add them in the comments below.