Recent Changes to the Law Regarding Electronic Marketing
The Privacy and Electronic Communications Regulation 2003 (‘PECR’) has been amended several times since its introduction (namely in 2004, 2011, 2015, 2016 and more recently at the end of 2018). The most recent changes should be worthy of note to all organisations using electronic marketing or cookies on their websites.
There were three main main recent changes introduced in 2018, namely:
- the banning of cold-calls made by claims management services;
- the introduction of officers’ liability with regards to breaches of marketing rules; and
- the banning of cold-calls regarding pensions, unless certain exemptions apply.
In this blog, we will explore these each in more detail.
Cold Calls Made by Claims Management Services
Persons must not use, or instigate the use of, a public electronic communication service to make unsolicited calls for the purpose of direct marketing in relation to claims management services, except with valid consent to do so.
Claims management services, for these purposes, means services providing advice, financial services or assistance, a person acting on behalf of or representing a person, the referral or introduction of one person to another and the making of inquiries.
The legislation governing this is s.35 of the Financial Guidance and Claims Act 2018.
Officers’ Liability Regarding Serious Breaches of Marketing Rules
The Privacy and Electronic Communications (Amendment) Regulations 2018 has introduced changes to PECR, enabling the Information Commissioner’s Office to impose penalties on officers, personally, for breaches of PECR regarding the use of automated calling systems and unsolicited direct marketing.
Officers, for these purposes, include directors of companies, partners in general partnerships and partners in limited liability partnerships.
Cold Calls for Direct Marketing in Relation to Pension Schemes
Calls for direct marketing in relation to pension schemes are now regulated by The Privacy and Electronic Communications (Amendment) (No. 2) Regulation 2018.
In summary, a person must not use, nor instigate the use of, public electronic communications service to make unsolicited calls to an individual for the purpose of direct marketing in relation to occupational pension schemes or personal pension schemes unless certain exemptions apply.
The exemptions are:
(a) where the caller is an authorised person or a person who is the trustee or manager of an occupational pension scheme or a personal pension scheme; and
(b) the called line is that of an individual who has previously notified the caller that for the time being the individual consents to such calls being made to the caller on the line; and / or
(c) the caller is an authorised person (as defined by s.11(1) of the Financial Services Act 2012) or a person who is the trustee or manager of an occupational pension scheme or a personal pension scheme; and
(d) the recipient of the call has an existing client relationship with the caller on the line and the relationship is such that the recipient might reasonably envisage receiving unsolicited calls for the purpose of direct marketing in relation to occupational pension schemes or personal pension schemes; and
(e) the recipient of the call has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of the recipient’s contact details for the purpose of such direct marketing, at the time that the details were initially collected and, where the recipient did not initially refuse the use of the details, at the time of each subsequent communication.
If you have any queries regarding the lawfulness of your marketing, or any other queries relating to data protection compliance, please contact us at Ordered Data Protection Consultants.