In brief – what does the Data Protection Act say about direct marketing?
Individuals have the right to prevent their personal data being processed for direct marketing. An individual can, at any time, give you written notice to stop (or not begin) using their personal data for direct marketing. Any individual can exercise this right, and if you receive a notice you must comply within a reasonable period.
For more information, read our direct marketing guidance (pdf) (and direct marketing checklist (pdf)).
In more detail…
- What is direct marketing?
- Should I respond to a notice to stop direct marketing?
- When an individual sends a notice, should I delete their details?
- Do I have to suppress details immediately?
- Do I have any other duties when using personal data?
- Can I ask people if they want to opt back in?
- What about the Mailing Preference Service?
- Does the same apply to the Telephone Preference Service?
- What about electronic marketing?
The Act includes some help on what is meant by “direct marketing” in a data protection context. The table below sets out the factors that are used to identify direct marketing material.
Directed to particular individuals
Lots of people receive “junk mail” that is not addressed to a particular person but to “the occupier”. This type of marketing is not directed at an individual and so is not direct marketing for the purposes of the Act. This kind of mail, posted through every letterbox on a street, includes leaflets like takeaway menus and information about clothing collections.
Communication by whatever means
The common image of direct marketing is that of mailshots or telemarketing. However, for the purposes of the Act it also includes all other means by which you might contact individuals, such as emails and text messages.
Advertising or marketing material
Direct marketing does not just refer to selling products or services to individuals. It includes promoting particular views or campaigns, such as those of a political party or charity. So, even if you are using personal data to elicit support for a good cause rather than to sell goods, you are still carrying out direct marketing and would have to comply with a written notice to stop.
So you must stop any promotional activity directed at a particular individual, using that person’s personal data to communicate the promotional activity to them, if they write and ask you to stop.
The Act does not require that you respond to a notice to stop direct marketing – it only requires you to stop. This is because you have no discretion about whether to comply with such a notice. However, acknowledging that you have received and acted on a notice is good practice, where this is appropriate.
Individuals will often ask you to remove or delete their details from your database or marketing list. However, in most cases it is preferable to follow the marketing industry practice of suppressing their details. Rather than deleting an individual’s details entirely, suppression involves retaining just enough information about them to ensure that their preferences are respected in future. Suppression allows you to ensure that you do not send marketing to people who have asked you not to, and means that you have a record against which you can check any new marketing lists. If you delete people’s details, you have no way of ensuring that they are not put back on your database. Deleting an individual’s details may also breach industry-specific legal requirements about how long you should hold personal data.
The Act says that you should stop processing for direct marketing purposes within a reasonable period. When considering whether you have done so, we take into account that a particular marketing campaign might already be underway when you receive a notice, and that the individual may subsequently receive further marketing material. However, we expect that in normal circumstances electronic communications should stop within 28 days of receiving the notice, and postal communications should stop within two months.
You must comply with the data protection principles, including the duty to process personal data fairly. In the context of direct marketing, this will involve making sure that the people whose information you are using are aware that they may receive marketing material from you. You might also consider whether you plan to pass your marketing lists to other organisations and how you will be contacting people, such as by post, phone, or email.
It is important to remember that the right to prevent the use of personal data for direct marketing purposes is a kind of “opt-out”. So you could market people until they send written notice telling you not to. However, if you fail to deal properly with a notice (perhaps due to a technical difficulty), an individual could apply to the court and the court could order you to comply with the notice. You should make every effort to avoid this, so it is good practice to give an individual the opportunity to object to future contact at the time you collect personal data from them, such as during a phone call or on a website, or when they sign an application form for a product or service. You can also use this opportunity to find out how they would like to be contacted.
If an individual has asked you to stop using their details for direct marketing purposes, they did so deliberately. You should not assume that they did so lightly or are happy to receive requests to change their mind. A notice to stop direct marketing applies to sending direct marketing material and also to processing personal data for direct marketing. In other words, the notice the individual gave you is likely to cover using their personal data to persuade them to allow you to put them back on your marketing list, and so you should avoid asking.
However, we recognise that people can change their minds and that marketing techniques also change. There is some merit in making sure the preferences people have previously expressed are up to date, but you should do this sensitively and should certainly avoid doing anything that could mean an individual has to inform you that their preferences have not changed.
A fitness centre regularly mails a newsletter to its members. Some members have objected to this use of their personal data and the fitness centre has, quite properly, flagged this objection on their system.
The fitness centre wants to ensure that these previously expressed wishes have not changed, particularly since the content of the newsletter has changed considerably over the last few months and it can also now be sent out as an email. They cannot assume that people may have changed their minds and it would be good practice to assume that any objections they received recently are still an accurate reflection of the members’ wishes.
For “older” objections, they could mention the changes to the newsletter and the possibility of receiving it by email in any “usual course of business” contact they have with the member, such as a membership renewal letter, but they should not contact the members concerned with the specific intention of showing them “what they are missing”.
We consider that it is acceptable to remind individuals of their ability to change their marketing preferences if the reminder forms a minor and incidental addition to a message you are sending them anyway.
A bank sends out annual statements to its customers detailing transactions on their deposit accounts during the previous year. A message is printed at the bottom of each statement to remind customers that they may wish to review their marketing preferences and telling them how to update them.
When sending direct marketing by post, it is good practice to screen your mailing lists against the lists held by the Mailing Preference Service (MPS). Individuals can register with MPS to reduce the amount of direct marketing mail they receive. Although marketers have no legal duty to check the MPS before sending direct marketing, many reputable organisations do so.
No. There are legally enforceable rules which prevent you making telesales calls to any subscriber who has told you to stop making such calls to their number. In addition, subscribers can register with the Telephone Preference Service (TPS) to prevent unsolicited telesales calls. You cannot make or instigate the making of unsolicited telesales calls to any number listed on the TPS register. Registration with the TPS does not override specific consents which an individual has given to particular organisations. Read about how to comply with the rules about telesales: