Direct marketing and the public sector

At a glance

• The rules on direct marketing apply to all sectors and types of organisations.
• However the majority of communications that public authorities send to individuals are unlikely to constitute direct marketing.
• If you are a public authority and your messages are necessary for your task or function, these messages are not direct marketing, even if you decide to rely on consent rather than public task.
• If a message is not direct marketing (or is direct marketing but is sent by non-electronic means, ie by post), you don’t need to comply with the marketing rules in PECR. But you must still comply with the UK GDPR (including fairness, transparency and the right to object).
• However, messages promoting services paid for by the user (eg leisure facilities) or fundraising do generally count as direct marketing. This means that the PECR marketing rules apply as well as the UK GDPR if you are sending such messages by electronic means.
• There is a right for individuals to object if you are relying on the public task basis, even if your message is not direct marketing. Unless you can demonstrate “compelling legitimate grounds” to continue sending the messages.
• Take particular care before sending any messages promoting third party services. You need to be clear how this is necessary for your functions.

In brief

• What is direct marketing?
• Do public sector promotions count as direct marketing?
• Why is it important to know if our promotional messages are direct marketing?
• What lawful basis can we use?
• What do we need to tell people?
• Is there a right to object?
• What if we want to send another organisation’s promotions?

What is direct marketing?

Direct marketing is broad and covers all types of advertising or marketing that is directed to individuals. It covers any means of communication such as emails, text messages, phone calls, post and direct messaging on social media.

It includes commercial marketing (eg promotion of products and services) and also the promotion of aims and ideals (eg fundraising, campaigning). This wide interpretation acknowledges that unwanted, and in some cases nuisance, direct marketing is not always limited to communications that have been sent for commercial purposes.

Direct marketing doesn’t include ‘service messages’. These are where you send a message to an individual for purely administrative or customer service purposes which doesn’t contain any advertising or promotional material.

Examples of service messages in the public sector may include:

• appointment reminder or confirmation messages;
• acknowledgment messages such as confirming receipt of information or applications;
• messages about delays to payments or benefits or chasing debts;
• test result messages; and
• messages about changes to services.

If a service message has elements that are direct marketing then that message is considered direct marketing even if that is not its main purpose.

Direct marketing is not limited to particular types of organisation or sector. Therefore any type of organisation could be covered, including public authorities. This means there is no absolute rule on public sector messages.

Do public sector promotions count as direct marketing?

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.

In order to decide if your promotional messages are necessary for your task or function, you do not have to identify an explicit statutory function to engage in promotional activity. We accept that all public authorities will at least have incidental powers to promote their services and engage with the public. But you do need to be able to identify a relevant task or function underlying the communication that you wish to send. You cannot say that a direct marketing message is no longer direct marketing just because you have stated your lawful basis is public task – you still need to be able to demonstrate that it applies.

Likewise it is not enough for you to simply say that a promotional message is “in the public interest” as this does not necessarily stop it from being direct marketing.

You must be able to demonstrate that sending promotional messages to individuals is necessary for your task or function and proportionate to your aim. This doesn’t mean that the processing must be absolutely essential but it must be more than just useful. It must be a proportionate way of achieving your task or function. You should consider whether you could reasonably achieve the same objective through means other than sending such communications directly to individuals. If the promotional message is necessary for your relevant function or task then it is not direct marketing.

Examples of messages which are promotional but may be necessary for delivering your tasks and functions could include those that promote:

• new public services;
• online portals;
• helplines; and
• guidance resources.

As long as these messages are necessary to perform your underlying functions they will not be considered direct marketing. See the section on why is it important to know if our promotional messages are direct marketing for further information on your obligations when a promotional message is not direct marketing.

It is likely that a promotional message will constitute direct marketing if you are unable to:

• identify a relevant task or function underlying the communication you want to send; or
• demonstrate that sending promotional messages is necessary for your identified task or function.

Promotional messages likely to constitute direct marketing could 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).

Many public authorities have quasi-commercial functions, for example running leisure facilities. These are services for which the individual has to pay, so from their perspective it is equivalent to a commercial service. Sometimes these commercial services are in competition with private sector providers of the same service.

If you want to send promotional messages about these types of services you will be engaging in direct marketing.

Why is it important to know if our promotional messages are direct marketing?

It is important because the law may apply differently depending on whether your promotional message is direct marketing.

If a promotional message is direct marketing you need to comply with:

• the direct marketing provisions of PECR (if you are sending the message by electronic means eg email, text message, phone call);
• the absolute right of individuals to object to processing of their personal data for direct marketing under the UK GDPR; and
• all the other general requirements of the UK GDPR including fairness and transparency.

However, if a promotional message is not direct marketing:

• the marketing provisions of PECR do not apply;
• the absolute right of individuals to object to processing for direct marketing does not apply but the general right to object under the UK GDPR does apply; and
• all the other requirements of the UK GDPR still apply when you are processing personal data, including fairness and transparency.

For further information see the sections on is there a right to object and what do we need to tell people.

What lawful basis can we use?

In order for processing of personal data to be lawful you need a lawful basis under the UK GDPR. There are six lawful bases for processing and the most appropriate is likely to depend on the particular circumstances. You must determine your lawful basis before you begin the processing and you should document it.

Your choice of lawful basis for sending promotional messages is likely to be either public task or consent.

Whilst the most obvious basis may seem to be public task, there is no obligation to rely on it. You may still want to consider consent, even if a promotional message is not direct marketing because it is necessary for your task.

In general, public authorities do need to be cautious when considering using consent as a lawful basis as your position of power can affect whether the consent is freely given. But the UK GDPR doesn’t prohibit you from using consent – if the individual has a genuine free choice to give or refuse consent to your promotional messages then the consent will be freely given.

There may be good reasons why you want to rely on consent instead of public task, for example it may be a sensible safeguard to ensure public trust. Using consent doesn’t affect the nature of the message or commit you to PECR marketing rules – if the promotional message is necessary for your public functions it is not direct marketing.

If you do use consent you will be compliant regardless of whether the message is direct marketing. But you must ensure that the consent is valid, which includes making sure it is fully informed and specific, easy to withdraw, as well as freely given.

What do we need to tell people?

You must be transparent and comply with the right to be informed. You must comply with this right regardless of what lawful basis you are using and regardless of whether a message constitutes direct marketing.

This means that you must be open and honest about what you intend to do with people’s personal data. You must not process it in a way that is unduly detrimental, unexpected or misleading to the individuals concerned. Proper transparency and acting in line with people’s reasonable expectations is key. For example, an individual enquiring about your services or raising an issue with you is unlikely to expect to have their email address automatically added to your mailing list.

Even if a message is not direct marketing you still need to ensure that you tell people about what you intend to do with their data. In other words you still need to comply with your transparency and fairness obligations even if your communication does not constitute direct marketing. You should not be sending promotional messages in accordance with your task or function, if you have not made this clear to individuals or it is not fair to do so.

You must tell people clearly about the messages that they should expect to receive from you. You must also tell people about their right to object and how to object – see the section below is there a right to object for further information.

Is there a right to object?

Yes, under the UK GDPR individuals have the right to object to their personal data being processed in certain circumstances and the right to withdraw their consent.

If a promotional message is direct marketing then individuals have an absolute right to object to your marketing. This means you must stop processing their personal data for this purpose as there are no exemptions or grounds for you to refuse.

If a promotional message is necessary for your task or function and you are relying on the public task lawful basis, the right to object is not absolute.

This means you may be able to continue sending the messages if you can demonstrate “compelling legitimate grounds” to do so. But you must consider any objections you receive, and you need to balance the individual’s interests, rights and freedoms with your own legitimate grounds. It is your responsibility to be able to demonstrate that your legitimate grounds override those of the individual. Your original justification for the promotion will not automatically be enough to justify sending messages to people who have specifically said they do not want them.

Often an individual will have no choice but to give their data to you. Sending unwanted promotional messages is unlikely to be necessary or effective. Therefore it is difficult to see how you would be able to demonstrate that continuing to send unwanted promotional messages overrides the individual’s rights. They have the right to object and choose how they are communicated with and what types of optional messages they receive, unless those messages are directly necessary for the provision of services to that specific individual. Likewise, it is difficult to see how sending optional messages to people who have specifically told you that they do not want them could be considered fair.

The right to object can be exercised at any time and must be explicitly brought to the individual’s attention, clearly and separately from other information.

With this in mind, you should be providing individuals with a clear, easy and obvious way to opt-out of receiving such messaging when you collect their data. Likewise you should remind individuals how they can opt-out of receiving such messages. Unless you can demonstrate “compelling legitimate grounds” not to do so.

If you are relying on consent as your lawful basis, individuals have the right to withdraw their consent. They can do this at any time and it must be as easy for them to withdraw consent as it was to give it. You must stop the processing that the consent covers immediately or as soon as possible.

What if we want to send another organisation’s promotions?

You need to take particular care if you are considering sending out a third party’s promotional communications, for example the promotions of a non-public authority.

Just because a public authority is the sender of a promotional message does not automatically mean that communication cannot be direct marketing. In particular, you must consider how sending out a third party’s promotional messages fits with your public task or function and necessity.

You must also consider whether it is fair to send such a message on behalf of the other organisation. You should also ensure that you were transparent with individuals about using their data for such purposes.