One of the unwelcome side effects of the pandemic has been the proliferation of bogus emails and texts trying to illegally elicit personal data from us.
I speak with my elderly mother almost daily, repeating the same lines; ‘don’t click on the link’, ‘don’t respond if someone is asking you to enter your details’, ‘hang up’, ‘delete it’, ‘you haven’t ordered a package, please ignore it’.
However, we’ve also all received other communications which I feel have been largely helpful. Messages such as pandemic update emails from our local councils, notifications about vaccines from our GPs, and text messages about the NHS app.
But would some of these be regarded as direct marketing messages? Did some contravene the rules under PECR (the Privacy and Electronic Communications Regulations)?
Possibly, perhaps in some cases definitely (under existing guidance). But does it matter? Surely, there’s an argument to say some communications may not be strictly necessary but are informative and useful, and don’t unduly impact on our privacy.
This is clearly an area the ICO felt needed addressing. The Regulator has issued new guidance, which appears to alter the long-standing interpretation of direct marketing.
What does the new guidance say?
The ICO says public sector organisations can send ‘promotional’ messages which would not be classed as direct marketing, if they are necessary for a public task or function.
This is significant. ‘Promotional’ messages have always been considered as ‘direct marketing’ before, regardless of whether they are sent by commercial companies, not-for-profits or the public sector.
It also means, in the eyes of the Regulator, such public sector ‘promotional’ emails, SMS messages and telephone calls do not fall within the scope of the UK’s Privacy and Electronic Communications Regulations (PECR).
In a blog announcing the new guidance the ICO states:
“Any sector or type of organisation is capable of engaging in direct marketing. However the majority of messages that public authorities send to individuals are unlikely to constitute direct marketing.”
Anthony Luhman, ICO Director, goes on to say:
“Our new guidance will help you understand how to send promotional messages in compliance with the law. Done properly the public should have trust and confidence in promotional messaging from the public sector.”
As said, until now any ‘promotional’ message was considered direct marketing. So this new guidance raises some questions:
- Has the long-standing interpretation of the definition of direct marketing been changed?
- Is this a sensible new interpretation?
- Will this open the floodgates to us being spammed by public authorities?
What is the definition of ‘direct marketing’?
The definition is broad. Under section 122(5) of the DPA 2018 the term ‘direct marketing’ means “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals”.
A definition which also applies for PECR.
What exactly is meant by ‘advertising or marketing material’ is not clarified in the DPA 2018 or PECR, but the long-standing interpretation of this has been that it is not limited to commercial marketing and includes any material which promotes ‘aims and ideals’.
This interpretation is clear in the ICO’s Direct Marketing Guidance and more recently in the draft Direct Marketing Code, published in January 2020, which says of directly marketing;:
“It is interpreted widely and covers any advertising or marketing material, not just commercial marketing. For example it includes the promotion of aims and ideals as well as advertising goods or services. This wide interpretation acknowledges that unwanted, and in some cases nuisance, direct marketing is not always limited to commercial marketing.”
When is a promotional public sector message not direct marketing?
In a nutshell, the new guidance states;
- If you’re a public authority and your promotional messages are necessary for your public task or function, these messages are not direct marketing
- If your messages by telephone, text or SMS are not direct marketing, you don’t need to comply with PECR. (But you still need to comply with UK GDPR).
The ICO is now drawing a distinction between promotional messages necessary to fulfil a public task or function, as opposed to messages from public authorities promoting services which a user pays for (such as leisure facilities) or fundraising activities. The latter would still be considered direct marketing.
The new guidance provides the following interpretation;
“In many cases public sector promotions to individuals are unlikely to count as direct marketing. This is because promotional messages that are necessary for your task or functions do not constitute direct marketing. We do not consider public functions specified by law to count as an organisation’s aims or ideals.”
This is in marked contrast to the wording of the draft Direct Marketing Code which says:
‘If, as a public body, you use marketing or advertising methods to promote your interests, you must comply with the direct marketing rules.”
What types of messages are direct marketing and which aren’t?
The following examples are given of the types of promotional content a public authority might communicate which would NOT constitute direct marketing;
- new public services
- online portals
- guidance resources
The ICO says promotional messages likely to be classed as direct marketing include:
- fundraising; or
- advertising services offered on a quasi-commercial basis or for which there is a charge (unless these are service messages as part of the service to the individual)
How do you decide if messages are necessary for public task or function?
The ICO says it accepts all public authorities will have what it describes as ‘incidental powers’ to promote their services and engage with the public.
It therefore says it is not necessary for a public authority to identify an ‘explicit statutory function’ to engage with promotional activity which is deemed ‘necessary’ for a task or function.
However, the ICO does stipulate you can’t just say a direct marketing message is no longer direct marketing because the lawful basis has been stated as public task.
Nor can you just decree a promotional message is ‘in the public interest’, this won’t automatically mean it isn’t direct marketing.
What the Regulator expects is for public authorities to identify a relevant task or function for the communication they wish to send.
There’s a risk here the ICO has not been clear enough. This could cause confusion and I suspect plenty of deliberation over which messages are or are not direct marketing.
It’s made clear that even if you determine certain promotional messages are not direct marketing, this doesn’t mean you can ignore other basic data protection principles.
You still need to make sure people know what you are doing with their personal data, and this must be within their reasonable expectations.
In other words public authorities must make it clear to people they intend to send promotional messages which are necessary for a public task or function. Which may mean updating their privacy notices.
Right to object
People have an absolute right to object to direct marketing, but they also have a general right under data protection law to object to processing, which includes when organisations are relying on the lawful basis of public task. A right people should be made aware of.
The guidance makes it clear – if someone objects to a promotional message from a public authority, it will only be possible to continue sending messages if ‘compelling legitimate grounds’ to do so can be demonstrated.
The ICO makes the point it would be difficult to justify continuing to send unwanted promotional messages if this goes against someone’s wishes.
My advice would be to include a clear ability to opt-out on any promotional message; any message which isn’t an essential service message.
(Albeit, this could cause some configuration issues for public authorities who don’t have sophisticated systems which can distinguish between different types of messages and opt-outs).
Lawful basis for promotional non-marketing messages
The ICO points to two lawful bases under UK GDPR for sending promotional messages necessary for a public task or function, either public task or consent.
The guidance suggests just because you can rely on public task, doesn’t mean you shouldn’t consider consent, which may be considered appropriate for public trust reasons.
The ICO accepts that Public Authorities may be reluctant to rely on consent, due to a potential imbalance of power, but says it may be considered appropriate if the individual has a genuine free choice to give or refuse to consent to promotional messages.
A change in interpretation
This new guidance certainly seems to represent a marked change in the ICO’s previous interpretation of direct marketing.
It’s interesting to note the following pertinent examples which are present in the draft Direct Marketing Code (which I suspect may be altered in the final version).
A GP sends the following text message to a patient: ‘Our records show you are due for x screening, please call the surgery on 12345678 to make an appointment.’
As this is neutrally worded and relates to the patient’s care it is not a direct marketing message but rather a service message.
A GP sends the following text message to a patient: ‘Our flu clinic is now open. If you would like a flu vaccination please call the surgery on 12345678 to make an appointment.’
This is more likely to be considered to be direct marketing because it does not relate to the patient’s specific care but rather to a general service that is available.
It seems to me Scenario B, under the new guidance could be classed as a promotional message, but NOT direct marketing.
(Personally, I would never have complained about Scenario B, it’s a helpful, informative message and hardly in the realms of the untargeted nuisance spam).
The draft Code goes on to confirm the following would be direct marketing;
- a GP sending text messages to patients inviting them to healthy eating event;
- a regulator sending out emails promoting its annual report launch;
- a local authority sending out an e-newsletter update on the work they are doing; and
- a government body sending personally addressed post promoting a health and safety campaign they are running.
The specific examples from the draft Code were used by people to question whether some of the messages they received during the pandemic contravened PECR.
Would these types of communications now no longer be direct marketing?
It would certainly seem like they aren’t if you go by the clear message from the ICO that; ‘the majority of messages that public authorities send to individuals are unlikely to constitute direct marketing.’
Will the above examples disappear from the final Direct Marketing Code?
This new guidance is likely to be welcomed by some who have been frustrated, or indeed bewildered their communications could be considered direct marketing.
However, it could also muddy the waters. It leaves the public sector needing to clearly define different types of communications and make sure relevant teams are adequately briefed to understand the difference.
As I see there are three types of communication:
a) Service messages – essential messages relating to the provision of a service
b) Promotional messages for public task or function (which are highly likely to need an opt-out)
c) Direct marketing messages (must have an opt-out to honour the individual’s absolute right to object).
I just wonder whether the term ‘promotional messages’ could have been avoided in this guidance. I am not sure I have a satisfactory alternative, but perhaps something like ‘information messages’ – i.e. messages that are not essential service messages but provide helpful information.
I also wonder whether there could have been a carve out for important health-related messages, rather than applying this new interpretation to any ‘promotional’ message from any public authority.
Let’s hope the public sector now pays due care and attention to transparency, provides an opt-out to all but essential messages, and doesn’t abuse this new-found power to engage with us beyond what is actually necessary.
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