Direct marketing

Disclaimer:  Whilst every effort has been made to ensure the accuracy of the information contained in the Pink Book of Legislation, we regret that we cannot be responsible for any errors. This guide is not intended to be a definitive statement of the law in England. If you require precise or detailed information on the legislation mentioned in this guide, or on the legal implications for you in particular, you should consult a professional legal adviser.

Key facts

  • If you make direct marketing calls to individuals, or send direct marketing faxes to individuals or businesses, you are required to comply with direct marketing legislation.
  • As a business, you are not allowed to make direct marketing calls to individuals who have declined to receive such calls or who have registered with the Telephone Preference Service (TPS).
  • If you send e-mail and text/picture/video marketing messages to advertise your business, the Privacy and Electronic Communications (EC Directive) Regulations 2003 apply.
  • The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 came into force in June 2014, replacing the Consumer Protection (Distance Selling) Regulations. These regulation apply to goods and services sold over the internet, by phone or by mail order. However, they do not apply to contracts to provide accommodation, transport, catering or leisure services.

 

Direct marketing by telephone or electronic media

The Privacy and Electronic Communications (EC Directive) Regulations 2003 were introduced to protect individuals, and in some cases businesses, against receiving direct marketing material by phone or electronic media (e.g. internet or text messaging) without their prior approval.

The regulations are overseen and enforced by the Information Commissioners Office. This is an independent authority established by the Government.

 

Do the Regulations apply to me?

Yes: if you make direct marketing calls, emails, texts or other electronic communications to individuals or businesses.

 

What do the Regulations cover?

Direct marketing phone calls

As a business, you are not allowed to make a direct marketing call to any individual (including sole traders and, except in Scotland, partnerships), if they have told you that they do not want to receive such calls or they have registered with the Telephone Preference Service.

 

Direct marketing faxes

As a business, you are not allowed to send a direct marketing fax to anyone, whether a consumer or a business, if the recipient has registered with the Fax Preference Service (FPS). In addition, you must not send a direct marketing fax to an individual who has not previously consented to receive it.

  • Note: the TPS and FPS are services set up by the Direct Marketing Association (DMA). They maintain registers of all those who have stated that they do not want to receive direct marketing calls or faxes.

 

Emails and text messaging

The Regulations define electronic mail as “any text, voice, sound, or image message sent over a public electronic communications network” and includes messages sent via social media.

The regulations require you to obtain individuals' prior consent before sending unsolicited direct marketing via e-mail or text messages. When undertaking any marketing you must also identify your business and provide a valid address to which the recipient can send an opt-out request.

 

The soft opt-in

There is an exception to the need to gain prior consent which is called the “soft opt-in”. This allows you to send electronic mail for marketing purposes to individuals where you obtained their contact details in the course of a sale or negotiations for the sale of a product or service in the past (i.e. previous customers).

For the soft opt-in to apply, the individual must have been provided with a simple means of refusing the use of their contact details at the time they were initially collected (e.g. a tick-box on a paper or online booking form) and the material you send them must relate to similar products and services only (i.e. you cannot send them advertising material for someone else’s business).

The material you send must also provide the opportunity for the person to opt-out of any subsequent communications.

 

How do I comply, and what are the costs?

If you intend to make any 'cold' direct marketing calls (calls where permission has not been given to do so beforehand) to individuals or send faxes to individuals or businesses, you need to check the numbers first against the TPS or FPS registers, as appropriate. If you make regular cold calls, you need to check the numbers every 28 days.

The cost of access to the TPS register varies, depending on the type and level of access you require. In order to ensure that you have the most appropriate package, call the TPS/FPS information pack line (see Further guidance below). There is also useful information on the TPS website. If you use a telemarketing company to run a telephone campaign for you, you do not need to subscribe.

 

Using premium rate numbers

Premium rate numbers generally begin with 09, 118, 0871, 0872 and 0873. Mobile text shortcode numbers - the five- and six-digit numbers that you can use to enter text competitions, give to charity via your mobile, download mobile games, etc. - are also considered premium rate. The 0870 and 0845 numbers are not affected.

Premium rate numbers are currently regulated by the Phone-paid Services Authority under an Ofcom approved code of practice.

  • Pricing: pricing information is to be clearly written wherever you display the number. It applies to electronic, website and print information.
  • Undue delay: there should not be an unfair delay before a caller can access the service required. Callers must be informed of the expected time it will take to have their call answered and, if applicable, of their position in any queuing system.
  • Prior permission licenses: some services require prior permission from the Phone-paid Services Authority before they can operate on a premium-rate line, such as international dial-through services. A list of those services exempt from prior permission can be found on the Phone-paid Services Authority website.
  • Customer care contact number: a number must be provided for customers with complaints or concerns to call. This number can be the same or an alternative 087 number.

For more information or to register a premium rate service, visit the Phone-paid Services Authority website

 

The use of "cookies" on websites

A “cookie” is a piece of data stored by a website within a browser, and then subsequently sent back to the same website by the browser. Typically, a cookie remembers a user’s preferences or settings when they revisit the website. More recently, businesses have introduced “tracking cookies” as a way to compile long-term records of individual’s browsing histories so that products and offers can be targeted to specific customers or so a picture can be developed of a customer’s buying patterns.

You are not allowed to use cookies or similar devices unless:

  • customers are provided with clear and comprehensive information about the purposes of the storage of, or access to, that information, and; 
  • have given their consent.

The Regulations are not prescriptive about the sort of information that you should provide but the text should be sufficiently comprehensive and intelligible to allow customers to clearly understand the potential consequences of allowing storage and access to the information collected by the cookie should they wish to do so.

Guidance on the use of cookies and other similar devices is provided on the Information Commissioner’s Office website. The ICO also produces a guidance publication, Guidance on the rules on use of cookies and similar technologies, which can be downloaded from the website.

Direct marketing by electronic mail

If you send e-mail and text/picture/video marketing messages to advertise your business then you must comply with the Privacy and Electronic Communications (EC Directive) Regulations 2003.

The Information Commissioner is responsible for enforcing the regulations.

 

What do the Regulations require?

Under the 2003 Regulations you are not allowed, by law, to send unsolicited marketing material by e-mail to an individual subscriber without previous consent nor send any marketing material by e-mail (whether solicited or unsolicited) to any subscriber without revealing your full identify or a valid address to which the recipient can send an opt-out request.

You may e-mail marketing material to previous guests at your establishment providing the recipients had a simple means of refusing the use of their contact details for marketing purposes at the time their details were collected, or at the time of each subsequent communication (this should be free of charge except for the cost of transmission). This is known as the 'soft opt in' criteria.

You are not obliged to check against the TPS register because you should already have established prior consent or satisfied the soft opt in criteria before your transmission.

Guidance on online selling is available from the Government portal.

 

Distance selling

In June 2014 the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 came into force, replacing the Consumer Protection (Distance Selling) Regulations 2000 and the Consumer Protection (Distance Selling) (Amendment) Regulations 2005. For small accommodation businesses, the new legislation does not provide any significant changes to the existing legislation.

These regulations apply to goods and services that are not sold in 'face-to-face' transactions. That is items sold over the internet, by phone or by mail order where the customer is not able to inspect the goods and services that they are purchasing.

The purpose of these regulations is to provide additional rights to consumers buying at a distance to encourage confidence in this method of transaction. The information that must be provided in these transactions includes details about:

  • the business
  • the goods or services you are selling
  • payment arrangements
  • delivery arrangements
  • consumers' right to cancel their orders.

The regulations also require the business to provide those goods or services within 30 days.

However, it is important to note that the regulations do not apply to contracts to provide accommodation, transport, catering and leisure services where the contract provides for a specific date or period of performance (eg., a concert or sports event that is only being staged on specific dates).

It should also be noted that the Regulations do not apply to goods and services sold to other businesses (these are business-to-business contracts) and only apply to transactions that are normally undertaken at distance and where there are systems in place for trading in this way.

So even if you occasionally sell products and services other than the services listed as exempt above, the Regulations only apply if this is your normal way of selling these products and services. 

 

Further guidance