Marketing: The Law. What you Need to Know to Avoid Costly Bother.
October 17th 2014 | By Sarah McInerney
Did you know that marketing is governed by a whole set of rules? That you are obligated to comply with certain laws and guidelines when you are promoting your business via advertising, email, postal and telephone marketing?
And you have to be careful too, because breaching the law can lead to quite substantial fines and prosecutions.
For example, recently the Information Commissioner’s Office (ICO) issued fines of incredible proportions – one of £90,000 and another of £225,000 – for a breach of telemarketing rules. When you embark on a telephone marketing campaign, there are various guidelines you need to adhere to. One is that you have to screen your marketing lists against the TPS and CTPS (Corporate Telephone Preference) registers. The Privacy and Electronic Communications Regulations forbid any business to make unsolicited sales and marketing calls to anyone registered on these lists unless consent has been given. List screening is also a requirement and must be done at least 28 days before any unsolicited calls are made.
The Law on Email Marketing
The Privacy and Electronic Communications Regulations also cover email marketing. Under the regulations the key thing to realise is that you are only permitted to send unsolicited emails if the recipient has given permission. There is an exception to this rule known as the ‘soft opt-in’ and it applies only where you have obtained the recipient’s details during the course of a sale or negotiations for a sale of a product or service; where the messages are only marketing similar products or services and, as detailed on the ICO website, “where the recipient is given a simple opportunity to refuse marketing when their details are collected, and if they don’t opt out at this point, are given a simple way to do so in future messages.”
Another rule to remember is that when you send a marketing email you must inform the recipient who you are and give them a valid contact address. Whilst these rules do not apply to emails sent to organisations – these need to be limited companies, LLPs or PLCs and not sole traders – you must still identify yourself and provide a valid address.
The ICO recommends that all marketing campaigns are permission-based. Good practice dictates that you should provide a simple way for recipients to opt out of marketing messages and you should have a system in place for handling complaints.
The Rules on Postal Marketing
Anything you send by post that constitutes marketing is bound by the Data Protection Act. If your targets request to be removed from your mailing list, you have to comply. Failure could lead to a court order against you under the Data Protection Act.
You also need to be aware of the Mailing Preference Service (MPS), a service set up by the direct marketing industry to manage the sending of ‘junk mail’ and to give people the chance to opt out of receiving such material. Recipients can register their details with the MPS to prevent receiving such mailings and numerous direct marketing codes of practice dictate that mailing lists must be cleaned against the MPS file.
You can make sure your marketing conforms with data protection law and direct marketing good practice by reading the ICO’s direct marketing checklist and direct marketing guidance.
And finally, everything you say in your marketing and advertising campaigns and across all your printed and digital media needs to comply with Advertising Standards Authority (ASA) guidelines. In general you are not permitted to make unsubstantiated claims about a product or service and there are strict rules governing how you are allowed to advertise prices, sales and special offers. Different industries have their own special rules and it is vital you are familiar with them. To learn more visit the ASA website.
We’re not lawyers, but we know what goes and what doesn’t when it comes to the various marketing disciplines. If you’d like help with a compliant marketing campaign, get in touch.