Overview of ICOs PECR Guidelines on Direct Marketing Using Electronic Mail and Live Call

In October 2022, the Information Commissioner’s Office (“ICO”) introduced guidelines for organisations to use direct marketing via electronic mail and live calls.

• Electronic mail is a text, voice, sound or image sent through an electronic network and capable of being stored by the receiver in their equipment. It can also include a short service message and intends to include all types of electronic communication methods.

• The Privacy and Electronic Communication Regulations (“PECR”) deal with direct marketing calls but ICO’s guidance covers only live marketing calls where a caller reaches out to a subscriber and it excludes pre-recorded and automated calls.

• The PECR also defines direct marketing as the communication of advertising, marketing or promotional material including (i) any commercial marketing for purposes such as promoting the goods and services of the organisation and (ii) any promotional activities such as campaigning or raising funds.

• Any communication having any marketing content irrespective of its purpose will be a marketing communication. The PECR rules do not only apply to communications involving personal data and apply to subscribers of a service.

• Subscribers include corporate and individual subscribers. Corporate subscribers are entities with a separate legal body whereas individual subscribers are natural persons who may be a business such as sole traders.

Direct marketing guidelines

• Direct marketing communications must provide the true identity of the organisation or individual sending the communication and provide an option to opt out of such communications.

• For live marketing calls, contact information of the caller shall be provided, if requested. The caller must also disclose the purpose of such calls to allow the subscriber to object to the marketing.

• These guidelines apply to instigators as well. Any individual or entity making marketing communications on behalf of the sender is an instigator. The sender shall have an agreement with the instigator which sets out their obligations for direct marketing and conduct appropriate checks with respect to transmission of personal data.

• When an organisation is a subscriber, the organisation must ensure that its members and instigators shall only use the organisation's connection for marketing.

Direct Marketing by Electronic Mail

• For communications to individual subscribers, consent or a soft opt in is required from the individual. For obtaining consent, there must be (i) free choice; (ii) clear and simple language communicating that consent is for direct marketing including the types such as texts or emails; (iii) unambiguous indication of consent; and (iv) clear action by the individual to demonstrate consent.

• The soft-opt-in requirement is where (i) the contact details have been obtained during sales or in the course of sale of goods or services by the organisation; (ii) the communication is only with respect to similar products and; (iii) the individual was given a chance to opt-out of direct marketing communications when the information was collected and the individual did not exercise this right.

• Individuals must have the option to withdraw consent and opt-out of the soft opt-in at the time of collecting such consent and in every subsequent communication. Providing a common opt-out mechanism under the privacy policy of an organisation is in violation of the PECR guidelines

• Where individuals specifically ask for direct marketing communications, they fall under solicited communications and the above compliances are not required.

• The sender is also required to add such individuals to a list who have opted out of direct marketing communications to ensure compliance with the guidelines.

Direct Marketing by Live Calls

• These communications do not require consent. However, a live marketing call cannot be made if: (i) they have explicitly told you that they do not want marketing calls or; (ii) the Telephone Preference Service (“TPS”) or Corporate TPS (“CTPS”) lists have their number listed.

• The TPS and CTPS are statutory lists which have the numbers that do not wish to be contacted for direct marketing.

• The caller has to ensure that they check the list for phone numbers to avoid calling such numbers for direct marketing. Any additional state specific regulations must also be complied with.

• Each organisation should also maintain a ‘do not call’ list to ensure that a subscriber who has opted-out from live marketing calls is not contacted again.

Third-Party Lists

• If the sender is using a marketing list that a third party that sells, the sender must check that the third-party has the individual’s consent for receiving direct marketing electronic mails from the sender.

• Consent is required before sending any direct marketing electronic mail if marketing is through publicly available information.

• The soft opt-in option does not apply as the sender does not directly collect information from the individual.

• The caller will still need to check the TPS and CTPS lists for the above communications. The organisation shall be responsible to ensure that the checks have taken place in the last 28 days as it might take 28 days for a subscriber’s request to reflect in these lists.

• For callers, they are required to check if the consent specifically covers live marketing calls. If subscribers have communicated that they do not object to such marketing calls, such records shall be maintained to demonstrate that consent was taken.

Live Marketing calls for Claims Management Services and Pension Claims

• PECR lists claims management services which are providing advice, financial assistance or services, acting on behalf of or representing a person, referral or introduction of one person to another and making enquiries.

• A claim includes a claim for repayment, compensation or a remedy for loss or damage arising from an obligation. These claims may arise from a legal proceeding, a voluntary undertaking or if it is in line with a scheme of regulation (which may be voluntary or compulsory). As consent is primarily required for marketing claims management services, checking the TPS and CTPS lists is not required.

• Pension Schemes include (i) a product or service which is marketed that a person would buy using funds that the person holds or has previously held in a pension scheme; (ii) providing advice or another service that promotes or promotes consideration of withdrawing or transferring funds from a pension scheme; or (iii) providing another service or advice to allow the assessment of the performance of a pension scheme (including its performance in comparison with other kinds of investment).

• For such direct marketing, a trustee or manager of a personal or occupational pension scheme is required or you need to be authorised by the Financial Conduct Authority. If not, you need to fall under the following criteria:

• You need to have a pre-existing client relationship provided that such relationship was not established with the intention of for the purpose of making such calls.

• The person reasonably expects such a call from you.

• You provide the person with an option to opt-out of such marketing calls when their information was collected and in subsequent calls as well.