April 4, 2016

The aim of the guidance is, the ICO says, “to enable organisations to understand how to comply with the law and follow good practice”.  However, the ICO notes, Minister for IP, Baroness Neville Rolfe, has recently voiced her support for issuing the guidance as a Code of Practice with specific statutory recognition, which would allow it to be considered by the courts.  Such a move would need legislative change, as well as a full consultation.  In the meantime, the ICO says, the guidance remains “a key document”, both as a guide to how organisations can make sure that marketing calls and texts are made in line with the law, and to inform the ICO’s enforcement activity.

The most notable addition to the updated guidance is a greater focus on scenarios involving not-for-profit organisations.  It is important to remember, the ICO says, that the law requires charities to follow the same rules as any other organisation, but the high-profile difficulties some have found in meeting that requirement has meant that the ICO has provided more advice to this sector within the guidance, including specific examples.  The ICO also has an ongoing investigation into how charities have complied with the law, and is currently working with charities keen to improve their approach.

More broadly, the updated guidance gives more direction around third-party consent, making it “clearer than ever” that phrases such as, “are you happy to receive marketing from selected third parties”, will rarely be likely to demonstrate that the law is being followed.

Further detail around consent being freely given has also been included in the updated guidance.  It is not within the law, the guidance makes clear, to unduly incentivise people to give their consent to marketing calls, nor typically to require consent to marketing as a condition of subscribing to a service.

The ICO says that it has not produced separate guidance documents dedicated to specific sectors, as some might like, because the Privacy and Electronic Communications (EC Directive) Regulations 2003 apply equally to any and all organisations engaging in direct marketing activity via electronic means, regardless of their sector, and to create various different strands of guidance for different sectors would “create a confused picture”.

The ICO is also working on other new guidance that will be useful to organisations undertaking direct marketing, such as the updated Privacy Notices Code, a checklist for selling and buying data and standard wording for organisations to use when collecting personal data for marketing purposes.  To read the ICO blog post in full and for a link to the updated guidance, click here.