This is part of a series of articles on the draft ICO’s draft Direct Marketing Code of Practice. The consultation is open until the 4th March 2020. Here we look at the type of marketing messages that are covered.

What type of marketing messages are covered?

Solicited/unsolicited marketing

The ICO makes it clear that the rules only apply to unsolicited communications. I have an issue with the first example. Sending a quote to a potential customer when they have requested it seems like a service message to me. Depending on the wording and other leaflets with the quote, this may amount to marketing. However a straightforward quote, with information about products and services which form part of that quote, should not come within the definition of direct marketing. What this demonstrates is how wide the definition of “advertising/marketing” is and how subjective the assessment.

Market Research

Genuine market research is not direct marketing. However you need to be careful that you or your third-party processor does not stray into marketing. This can easily be done, especially when conducting telephone surveys. How far can you go with questions about your products/comparison with a competitor’s and it still be market research? Some clarification would be helpful.

Service messages

The ICO have been busy in this area, resulting in a monetary penalty notice for EE. They thought their SMS message was a service communication but the ICO disagreed. The code provides a good explanation although there is still uncertainty whether a message is service or marketing. It will depend on the content and context of the message, which is always a subjective assessment.

It would be good to have some practical examples here. Are brand taglines or links to the brand’s website ok to include?

Regulatory communications

Many regulated organisations, for example those in the energy sector, have to tell their customers various things. In some cases, they may have to say there is a better deal with a competitor. Are these service messages? It would appear to be dependent on the content and context, so an example would be useful.

Public sector communications

An example would be useful to show what a local authority could include in a communication about its statutory services without straying into marketing. The GP example provides some guidance: it is how you say something that is important rather than the message itself.