All posts by : janinepaterson

I feel sorry for cold callers.

Not the company owners or senior management … but those that sit day after day ringing number after number trying to reach the almost impossible target set for them.

Having to deal with the rejection. Even if someone answers the phone, they hang up as soon as they hear the opening words. Not to mention the rudeness!

The rejection is, in some ways, understandable (although there’s never an excuse for being rude!). After all, many people are plagued with cold calls for all sorts of services and products which they have no interest or need for.

For example: A childhood friend of my brother answered yet another cold call soon after he moved into his first home. He received so many that sometimes he went along with the conversation, randomly providing answers to the questions posed.

He did this when a conservatory company rang him out of the blue.

He discussed design, insulation, and even a price with the salesman.

It was at this point my brother’s friend asked:

Can you fit a conservatory to a 2^nd floor flat!

The salesman, or more likely the company behind him, made a major mistake before he even picked up the phone.

Targeting!

Researching your prospective audience is a must before you even look at picking up the phone. You need to learn all about your ideal customer and narrow down your audience to those who are likely to buy your products and services.

This can be as simple  – in the case of my brother’s friend one question they should have asked themselves is does my ideal customer live in a house or flat?

Or, you can go into more depth –like checking for households within your target postcodes that do not already have a conservatory.

But, however you choose to go about your research, you need to do this as part of your telemarketing campaign. The bottom line is, it will save money and time and avoid any negative impressions of your company.

Get that right and you’re halfway there.

But you still need to consider the marketing rules and regulations around telemarketing because these govern what you can and can’t do.

These dos and don’ts can seem confusing, but it’s vital you get this right.

It was 1978 – before the internet even existed and more than 2 decades before most Americans had an email address.

But I hear you say – how can you send an email without the internet?

Well, an American marketing manager sent emails to 400 customers promoting the launch of a new product via ARPANET, a precursor to the World Wide Web.

Gary Thuerk, believes himself to be the father of e-mailing, but he is more commonly known as the father of spam.

Email has moved on considerably since Mr Thuerk’s day, becoming one of the most successful direct marketing channels.

It’s also one of the most abused, and one of the easiest ways to find yourself in trouble with the ICO.

This stops many businesses from benefiting from the reach that email can bring – starting conversations with customers and new prospects, keeping your brand front of mind, so when they need what you offer, they come to you.

But, use email marketing correctly and you’ll build a loyal following of people interested in your products/services.

People who trust you to do things properly and respect them as human beings not just numbers on a spreadsheet.

The rules around email marketing can seem complex and confusing, and implementing a good email marketing campaign requires more than a rudimentary understanding of what you can and can’t do, for example:

–  Can I send an email to a customer who bought something from me 2 weeks ago, 6 months ago, 3 years ago?

–  What if I buy a list from a data company – can I email those people?

–  How do I deal with people that complain about getting my emails?

These are just a few questions that often arise when you start looking at an email marketing campaign.

So, how do you make sure you get this right?

What’s important, before you even start looking at the data, the processes, and the rules, is to remember that the foundation of any marketing you do is gaining their permission.

Your customers and prospects are real people and need to be respected as such.

Anything and everything you do should put them first.

There is more than 1 way to gain permission for email marketing, and which one is right for your brand and ultimately your customers will need to be considered as part of getting your email marketing campaign working for you.

And that’s where the “more than just a rudimentary” understanding of the rules comes in.

Talk to an expert to make sure your email marketing makes the best (and legal) impression.

So we’ve covered who the ICO is and what they do, so let look at why it is important to be aware of why you need to follow the rules.

If the ICO receive a complaint about your use of personal data, it will be the start of a long process of investigation by them into your marketing activities.

They will ask you for general information of data protection practices, and then specific ones on the marketing communication in question.

This can be a very difficult time, and you may have many concerns about the investigation and where this is going.

And you should be worried.

Why?

The ICO, in my opinion, is not out to fine everyone large sums. Unlike some of their European counterparts, they are not funded from the penalties they impose. They want to educate organisations about the rules and how to comply.

However, that does not mean they will not be tough when they have to. They take their responsibilities as regulator seriously.

If a company has caused a serious and clear breach of the rules, they will take enforcement action.

And failing to engage with the ICO can increase the seriousness of that action.

As mentioned, unlike the ASA, the ICO does have the power to fine…

… up to £17.5 million or 4% of your annual worldwide turnover, whichever is the biggest!

To date fines have been nowhere near these figures, but there is the potential for this to happen.

So my advice is simple: don’t appear on the ICO’s radar!

Ask for help before it gets this far.

Well, that’s the end of this little series. Keep reading further blog posts for all things advertising and marketing law related.

So we’ve covered who the ASA is and what they do, and why you need to be aware of the advertising rules.

So what about the ICO.

Who are they?

The ICO or the Information Commissioner’s Office is the regulatory body for information rights in the UK.

The Information Commissioner, currently is John Edwards, started in January this year and works with a management board.

There are 4 offices, one in England, Scotland, Wales and Northern Ireland.

They oversee a number of pieces of legislation, including relevant to marketing, the Data Protection Act 2018, the General Data Protection Regulation 2018 and the Privacy and Electronic Communications Regulations 2003 as amended.

What do they do?

They police the rules and regulations governing how and when personal data can be used in your marketing activities.

There are specific rules covering the channels of communications used by marketers, so direct mail, telephone, email, sms and fax.

Here’s a handy table to give you an overview of the permission rules in a nutshell:

Then, there are the Mail Preference Service (MPS), the Telephone Preference Service (TPS), the Corporate Telephone Preference Service (CTPS) and the Fax Preference Service (FPS) to consider.

These are the suppression files where an individual can object to receiving marketing in general. You need to screen against these files before sending out your marketing campaign,

Compliance with TPS, CTPS and the FPS is a legal obligation. The MPS is run by the Data and Marketing Association (DMA) and screening against it is mandatory for DMA members only. However, many brands comply voluntarily as it is seen as best practice.

If a complaint is made about the use of personal data, the ICO will contact the marketer. They will be asked to answer questions on how they acquired the personal data and to prove they had permission to send the marketing. If you hear from the ICO, they will also ask about the marketing campaign, wanting details of how many emails were sent or telephone calls made, and a host of other information about your data protection procedures.

And that’s who the ICO is and what they do.

Next time…

… why you should be aware of what you can and can’t do with the personal data in your marketing activities, and the penalties for ignoring them (which, spoiler alert, can be eye-watering!)

So we’ve covered who the ASA is and what they do, so now it’s time to address the all-important question… why should you care?

Well, the ASA publish their adjudications every Wednesday morning.

You can go and read these on their website. Some of the things you’ll see will make you stare in disbelief, wondering what on Earth the advertiser was thinking.

But this isn’t always the case.

If you read the upheld cases, you’ll notice that even minor mistakes can lead to an investigation into your ads, which can mean that your business is in the spotlight for all the wrong reasons!

What’s more…

… it can take just ONE complaint to trigger an investigation!

You may have seen ad campaigns where the ASA have received 100s of complaints, but this is not the norm. Most of the ads complained about only have a couple of complaints about them, and it can take just 1 complaint to start an investigation.  

The ASA will review all complaints received about an ad to decide whether the ad may have broken any of the rules and if this is the case they will contact the advertiser. This could be the first time you become aware of an issue with your advertising, as many complainants will not come to you first!

Some brands accept that you can’t please everybody all the time, so complaints are part of the process. In fact, some seem to think that any publicity is good publicity so deliberately cross the lines in their advertising, just to get their name talked about.

But for many, this has seriously backfired.

Because once the ASA is involved, they will look at the ad and assess its compliance with all the rules, not just those raised in the complaint.

It maybe the complaint is not upheld, as there was no breach of the rules, but the ASA can raise their own “complaint” if they find non-compliance in a different part of the Code, and it is very rare that anything the ASA raise is found to be wrong.

If a complaint is upheld, your brand will be featured in Wednesday’s adjudications on their website, and many make the news headlines.

Unlike the ICO, the ASA can’t fine you. However, an upheld complaint can affect how your brand is seen by customers and suppliers alike and this has happened to brands that seem to “deliberately” play fast and loose with the rules. The publicity following your advert being banned can bring other skeletons out of the cupboard and into public knowledge.

For example, Brewdog had 3 upheld complaints in 11 months. And following the publicity these created, there were allegations concerning how they treated their staff, which again made the headlines.

Whether these issues would have been so newsworthy were they not already in the headlines for their advertising practices is an interesting question.

The lesson here is to avoid attention from the ASA if you can, and certainly don’t go looking for it!

Next time…

… who are the ICO and what do they do?

These blog posts will give you an overview of the rules and regulations that apply when you want to promote your business, products, and services, the same ones that I help my clients understand and comply with.

To kick off we should start with the people you need to know about in this sector: The Regulators.

This is a 4 part series looking at the 2 main players governing advertising and marketing: the Advertising Standards Authority (ASA) and the Information Commissioner’s Office (ICO).

Who are they, what do they do and… more importantly… why you should care!

Let’s start with the ASA. Or the Advertising Standards Authority to give them their full name.

So who are they?

The ASA is the independent regulator for advertising in the UK and has been overseeing ads for over 60 years. They operate in two ways:

1) Self-regulation: the advertising industry voluntarily set up and pays for the ASA to create and enforce advertising rules in respect of non-broadcast ads, sales promotions, and direct marketing communications.

2) Co-regulation: since 2014 the ASA has been responsible for the regulation of broadcast adverts, so TV, radio, tv text, interactive tv ads, and teleshopping in the UK under contract from Ofcom.

What do they do?

The ASA respond to complaints that ads breach the advertising rules, as well as proactively monitoring advertising across all media. They will investigate and decide if the rules have been broken, which can result in a formal upheld adjudication which is published each Wednesday.

The advertising rules come in 2 forms:

1) the UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing (the CAP Code), which cover all non-broadcast ads, so magazines, billboards, direct marketing, and sales promotions and

2) the UK Code of Broadcast Advertising (the BCAP Code), so TV and radio but also teleshopping, tv test, interactive tv ads and content on self-promotional channels.

These rules have been created by the members of 2 committees, CAP and BCAP, who represent advertisers, media owners and agencies within the sector. Members meet regularly to discuss how the rules are working and help update them when necessary.

The rules reflect legislation to prevent misleading or unfair advertising, but sometimes can go beyond the requirements in the law, aiming to create high standards in the sector.

Both Codes begin with general provisions, for example making sure you can recognise an ad, which is not always simple, rules preventing ads from being misleading, and rules to ensure ads don’t cause harm and/or offence.

Specific sections of the codes cover specific products or services, such as alcohol, medicines and motoring, and the channels of advertising, including promotional marketing and distance selling.

That’s a quick run through the ASA and what they do.

Next time…

… why you need to be aware of the advertising rules, and what can happen if you get it wrong!

Hi, I’m Janine and I’ve been qualified as a solicitor for 30 years.

For over 15 years, I have been providing legal advice and business help on marketing and advertising law and regulation.

I have helped clients successfully resolve investigations by the ICO, run exciting and compliant promotions for their brand, and acquire new customers and clients, legally and fairly.

The rules governing marketing and advertising are wide and often are not black and white. Understanding them and applying the principles takes knowledge, time and experience.

I am passionate about sharing my knowledge with others, so I send marketing compliance emails to my subscribers for free.

I hope it allows them to better understand the rules and best practice surrounding their marketing activities, so they can start to feel more confident that what they are doing is unlikely to result in unwelcome attention from the regulators.

This blog contains all the emails that I have sent so far, with new ones regularly added.

Feel free to can come back and read them as they appear.

However, if you would like them direct to your inbox on a Tuesday, you can sign up here.

If there are any subjects that I haven’t covered, I’d love to know. Email me at [email protected]

Happy reading (and learning)

Yours,

Janine