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.
- 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?
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.
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.”
This message is a service message and does not constitute direct marketing.
A public authority sends an email in response to an individual’s query and includes information about its complaints service.
Including information about how to use its complaints service is not direct marketing.
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.
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).
A public authority considers whether it can send a message to individuals on its complaints database. The authority wants to promote the charitable work that its employees have been doing and ask for sponsorship.
The public authority looks to its tasks and functions but is unable to identify anything relevant that would allow it to send such promotional messages. These messages would therefore be direct marketing.
The public authority decides not to send the messages to individuals and instead highlights the charitable work of its employees on its website.
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.
A gym run by a local authority wants to send out an email to members promoting a new fitness class.
As this message constitutes direct marketing the local authority ensures that sending the message complies with the PECR rules on email marketing, as well making sure that using personal data for this purpose complies with the UK GDPR.