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New marketing guidance from the ICO

The ICO has issued new guidance on direct marketing, together with a simple check list for those involved in direct marketing.

The Guidance seeks to explain, and provide a summary of, the law in relation to direct marketing which is contained in the Data Protection Act 1998 and the Privacy in Electronic Communications (EC Directive) Regulations 2003. It also includes coverage of key issues such as what amounts to consent and how to obtain it; rules on marketing calls, texts and emails; opt out rights; and marketing lists. 

Core messages of the guidance are: 

  • the rules on calls, texts and emails are stricter than those on mail marketing, and consent must be more specific – third party consent is unlikely to be valid for calls, texts or emails

  • marketers should have specific prior consent prior to sending marketing texts or emails to individuals (the soft opt-in exception can be used for previous customers)

  • marketers should be aware of the need, in many cases, to obtain consent and the need to be able to demonstrate that consent was knowingly given to recipients of marketing material – this will mean keeping records that form an audit trail and if possible using opt-in boxes

  • where consent was originally given to a third party the marketer will need to carry out rigorous checks prior to relying on it

  • marketers must not call any number on the Telephone Preference Service list without specific prior consent

  • the ICO can use its enforcement powers if the law relating to direct marketing is not complied with

ICO Guidance is important as it represents the ICO’s expectations as to best practice and it indicates how the ICO will approach complaints that it receives. Whilst it does not have the force of law anyone involved in direct marketing should review the Guidance and consider their activities in light of it. Existing policies and practices may need to be updated.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2013. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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