Blog
Feb
18
This reference guide gives you an overview of the terminology used in marketing compliance.
The following are extracts taken from the Information Commissioners Office Direct Marketing Code of Practice
What is the definition of direct marketing?
The definition of direct marketing is in section 122(5) of the DPA 2018:
“direct marketing” means the communication (by whatever means) of advertising or marketing material which is directed to particular individuals”
This definition also applies for PECR. This is because regulation 2(2) of PECR provides that any undefined expressions have the same meaning as in the UK data protection regime (formerly the Data Protection Act 1998, now the DPA 2018).
What are direct marketing purposes?
GDPR and PECR do not define the term ‘direct marketing purposes’, but clearly it is intended to be wider than simply sending direct marketing communications. The focus is on the purpose of the processing, not the activity. Therefore, if the ultimate aim is to send direct marketing communications, then all processing activities which lead up to, enable or support sending those communications is processing for direct marketing purposes, not just the communication itself.
Therefore, if you are processing personal data with the intention that it is used for communicating direct marketing by you or a third party you are processing for direct marketing purposes.
What is ‘advertising or marketing material’?
The DPA 2018 and PECR do not clarify what is meant by ‘advertising or marketing material’. However, it is interpreted widely and covers any advertising or marketing material, not just commercial marketing. For example, it includes the promotion of aims and ideals as well as advertising goods or services.
What are the different types of marketing ‘communications’?
The definition of direct marketing covers any means of communication, although PECR rules only apply to specific types of electronic communication (e.g. phone calls, emails, text messages, in-app messaging, push notifications).
Online behavioural advertising and some types of social media marketing are not classed as electronic mail under PECR but these are still direct marketing communications.
The definition is designed to be technology neutral and is therefore not limited to traditional forms of direct marketing such as telesales or mailshots, but can extend to online marketing, social networking or any other emerging channels of communication or approach.
Any background processing that takes place to enable or target those communications is also processing for direct marketing for purposes
What does ‘directed to’ mean?
The key element of the definition is that the marketing material must be ‘directed to’ particular individuals. For example:
- personally addressed post;
- calls to a particular telephone number;
- emails sent to a particular email account;
- online advertising that is targeted to a particular individual; and
- advertising on social media that is targeted to a particular individual.
Indiscriminate blanket marketing does not therefore fall within this definition of direct marketing. For example, leaflets delivered to every house in an area, magazine inserts, or adverts shown to every person who views a website.
Your marketing material is still ‘directed to’ particular individuals if you process their personal data behind the scenes, then remove their name from the resulting mailing. Omitting names from the marketing material you send does not stop it from being direct marketing.
What is ‘solicited’ and ‘unsolicited’ marketing?
Solicited direct marketing is marketing material that the person has specifically requested. There are no restrictions on sending this type of direct marketing (PECR rules only apply to ‘unsolicited’ direct marketing messages). GDPR does not prevent you from providing information which someone has specifically asked for.
If the direct marketing has not been specifically requested, it is unsolicited and PECR rules apply. This is true even if the customer has ‘opted in’ to receiving marketing in general from you.
Is market research direct marketing?
Market research will not constitute direct marketing if you contact individuals to conduct genuine market research (or you contract a research firm to do so). For example your purpose is to use market research to make decisions for commercial or public policy, or product development and there is no direct marketing purpose involved. However, you still need to comply with other provisions of the GDPR, and in particular ensure you process any individually identifiable research data fairly, transparently, securely and only for research purposes.
What are ‘service messages’?
The term ‘service message’ is not used in the GDPR or PECR but it is a way of describing a communication sent to an individual for administrative or customer service purposes. For example contacting a customer to:
- remind them how to contact you in case of a problem;
- check that their details are correct; or
- update them on your terms and conditions.
In these examples there is no advertising or marketing occurring and no promotional material being transmitted.
Are fundraising and campaigning messages direct marketing?
Yes, direct marketing is not limited to the sale of good and services, it also includes fundraising, campaigning and promotional activities. This means that the activities of not-for-profit organisations such as charities and political parties are covered by the direct marketing rules. Examples include:
- a university contacting its alumni to ask for donations;
- a charity appeal asking individuals to become supporters or leave a legacy donation;
- a political party contacting particular individuals to seek their votes; and
- a civil society group contacting people to encourage them to write to their MP or attend a public meeting or rally.
You still need to ensure that you comply with the GDPR and PECR rules even if you are contacting existing supporters.
Who are ‘subscribers’ and ‘users’ under PECR?
PECR defines subscribers and users as follows:
“subscriber” means a person who is party to a contract with a provider of public electronic communications services for the supply of such services;
“user” means any individual using a public electronic communications service.
The subscriber is the customer who has a contract with the service provider – in other words, the person named on the bill for the telephone line or internet connection, or the person who owns the SIM card on a pay-as-you-go mobile contract. This may be an individual or an organisation.
The user is any individual actually using the phone or internet connection. This will not always be the same person as the subscriber – for example they might be the subscriber’s employee, a customer, a family member or a friend.
Who are ‘corporate subscribers’ and ‘individual subscribers’ under PECR?
‘Corporate subscriber’ covers subscribers that are a corporate body with separate legal status. This includes companies, limited liability partnerships, Scottish partnerships, and some government bodies.
‘Individual subscriber’ covers individual customers (including sole traders) and other organisations (e.g. other types of partnership).
What is the definition of electronic mail?
Regulation 22 of PECR states electronic mail as:
“any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service.”