On 8th January the ICO published a draft code of practice for the marketing community. It’s entitled “Direct Marketing Code of Practice”. The use of the term “Direct Marketing” really interested me. The ICO guidance preamble states;
“This code applies if you process personal data for direct marketing purposes.”
So far so good.
“Direct marketing includes the promotion of aims and ideals as well as advertising goods or services. Any method of communication which is directed to particular individuals could constitute direct marketing. Direct marketing purposes include all processing activities that lead up to, enable or support the sending of direct marketing.”
Now things get interesting.
The lexicographers at Oxford Dictionaries define “Direct Marketing” as:
“The business of selling products or services directly to the public, e.g. by mail order or telephone selling, rather than through retailers”
Since 1960’s the term “Direct Marketing” has been associated with direct selling. It’s clear from the ICO draft code that their definition (based on the DPA 2018 definition), is far wider than that. This could be a source of confusion for the marketing community.
What has happened since 1960s?
Before the internet was established direct marketing was associated with activity using mailing packs, list rental, email and telemarketing to deliver direct sales. Not really the glamourous end of the spectrum and that view hasn’t changed.
The term is still largely associated with direct selling and considered by many to be old-fashioned and even obsolete. Certainly, no self-respecting digital marketer would ever refer to their activities as direct marketing. In fact, today, not even the original direct marketers use this term.
It feels out of step. For further proof, you need look no further than the DMA who have renamed themselves the Data and Marketing Association, quietly dropping Direct Marketing from their name.
Am I making a fuss about nothing?
I don’t think so. In 2020 the total advertising pot in UK is forecast to reach £24.7bn of which internet advertising is forecast to exceed £16bn, (Ad Association/Warc Statistics). Of the £8-9bn balance we can see TV advertising and Outdoor increasingly utilising programmatic methods to deliver their messages.
The point is that the lion’s share of advertising activity in 2020 will be powered by the use of data. And, as digital advertising continues to grow, data driven activity will dwarf the non-data driven campaigns.
The ICO’s mention of the promotion of “aims and ideals” allows them to widen the net to cover all and any brand campaigns. In summary, all marketing is Data Driven Marketing and all marketers will need to follow the code.
What is mentioned in the draft code?
Cookies, social media, customer profiling and digital advertising as well as the more traditional direct mail, telemarketing and emails. This means that all digital display and social media advertising is affected by this code.
To be even clearer advertising that is placed on Google, Facebook, Instagram and any other social media platform is affected by this code. Furthermore, there’s also mention of “new technologies”: i.e. any technology that has or has not been invented that uses data to target advertising. Web beacons, in-app notifications, email pixels, social media pixels are just a few.
What does this mean for marketers?
Use of digital marketing techniques may infringe the rights of individuals meaning that some careful assessment of data protection impact is required. In a nutshell marketing teams need to become very familiar with a Data Protection Impact Assessment.
The ICO have already commented on the lack of DPIAs in ad tech. It’s time to wake up and start to proactively evaluate the risks.
Why is the terminology a problem? Is it time to modernise it?
It’s possible a large number of brand marketers will discount this ‘direct marketing’ code and assume it’s not for them. Not only that but they’ll potentially perceive that the ICO isn’t for them either. This is a problem.
Through the course of the ad tech investigations by the ICO the team has been surprised by the lack of engagement by certain quarters in the marketing community. If this extremely useful document was named in a way that resonated with CMOs they might sit up and listen? It doesn’t have to stray too far to make sense. How about Data Driven Marketing Code of Practice or even simpler the Marketing Code of Practice?
Julia Porter, February 2020
The public consultation on the draft code closed on 4th March 2020. The DPN submitted a response.
The information provided and the opinions expressed in this document represent the views of the Data Protection Network. They do not constitute legal advice and cannot be construed as offering comprehensive guidance on the EU General Data Protection Regulation (GDPR) or other statutory measures referred to.