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Marketing Data Privacy and Electronic Regulations 2003, TPS, MPS

posted 16 Aug 2010, 12:59 by Leigh Tymms   [ updated 26 Aug 2010, 05:51 ]
Marketing, data and the law – are you legal?

Spending hours gathering ‘prospect’ data from directories as a basis for a campaign is a very familiar exercise for many businesses. It can however lead you onto the wrong side of regulation all too easily. A well managed campaign is one that considers the preferences of those being contacted, and uses stringent targeting and appropriate channels to communicate effectively and in line with regulations.  

There are many ways to gather data as a basis for a marketing campaign, through purchasing lists, networking, exhibiting or through promotions for example. Just because details have been gathered by such a means does not mean an organisation can promote to them.  Regulation dictates both how the data is stored and used for marketing purposes.

Data Storage:

The  Data Protection Act requires organisations processing data  to follow eight principles, to ensure the data is:
Fairly and lawfully processed 
Processed for limited purposes 
Adequate, relevant and not excessive (only information of relevance is collected and stored)
Accurate and up to date 
Not kept for longer than is necessary 
Processed in line with an individual’s rights 
Secure (e.g files are password protected if electronically stored or locked away if hard copy)
Not transferred to other countries without adequate protection 

The Act also enables individuals to contact organisations to find out what information is being held about them, to which organisations should respond promptly with copies of records. Many organisations will also find that under this Act, where they are storing and using data, they should be registered with the Information Commissioners Office.

Mailing, Fax and Telephone Preference:

Individuals, whether at home or in organisations, have preferences over how frequently they are contacted and by which communications channel – all of which is good practice to build  in to your communications planning. More fundamental  is the issue of whether an individual has ‘opted out’ of receiving such communications by one or more of these channels – which is where more regulation kicks in.

The Mailing (MPS), Fax (FPS) and Telephone Preference Services (TPS) are the centrally held UK opt-out registers.  Marketing lists should be cleaned against these before campaigns are implemented. Individuals can register at any point to not receive unsolicited  communications. It is vital therefore, to check the preference services within 28 days of each campaign or promotional contact, in the instances where no business relationship is previously held. 

Calling numbers on the Telephone Preference Service for promotional purposes is governed by  Privacy and Electronic (EC Directive) Regulations 2003. There are currently over 1.6m individuals in the UK who have opted out  and the fines for breaching this law can be as high as £5000.

In addition to the preference services, individuals are entitled to contact any organisation and say they do not wish to receive promotional communications by one or more communications channels, which the organisation should record and honour in the future.

Email and SMS Marketing:
Electronic marketing is highly regulated. What makes this especially difficult is that there is an onus on organisations, where a business relationship does not exist, to ensure those they send promotional communications to by email (e.g. eNewsletter) actually ‘opt-in’ to such communications to say they would like to receive them. Often this is achieved through a tick box on a website alongside a relevant explanation, a link to a subscription form or a combination of these. In addition to this, the sender should always be given a mechanism, in each communication, to opt out of such future communications.

Common mistakes to avoid:
‘Spamming’ attendance  lists from events or exhibitions or using data from a ‘business card fishbowl’ – did they specifically opt in to receive your promotional communications?
Promoting to individuals out of the blue where the relationship is years old and they’re not expecting to hear from you.

Another danger with email marketing is that where it is not opted into, junk mail filters and the chances of being ‘blacklisted’ as spam can heavily impact your chances of communicating in the future.

All of this might seem a bit onerous but why waste resource promoting to individuals that would rather not receive such communications? These regulations can actually help your targeting, increasing the likelihood of a better response rate when implemented as part of a well conceived campaign.

For more information and advice, including sourcing clean data lists of prospects, cleaning your lists, implementing secure data storage or campaign management, contact