The Data Protection Act 1998 already governs the way we use information that identifies people, but new rules go a stage further.
One fundamental change, intended to assuage the Orwellian paranoia of consumers and privacy advocates, is that the regulations cover unsolicited direct marketing activities even where the marketer is not using contact information that identifies individuals.
This presents a significant challenge for companies who market to individuals.
Unsolicited marketing
The Privacy and Electronic Communications Regulations 2003 implement in the UK the European directive of the same name. In essence, the regulations require that companies must have consent up front for any kind of electronic marketing to consumers.
You also have to offer an opt-out (for future marketing) every time you mail or text the target. There is one exception to the rule about having consent up front -- known as the "soft opt-in".
The soft opt-in
Under the soft opt-in, organisations are allowed to send direct marketing electronically to existing customers or to recipients with whom the company has negotiated for a sale in the past, provided:
Spam
The rules also attempt to prevent the conventional practice by spammers of disguising junk mail with tempting and sometimes irrelevant subject headings, and of disguising their identity by including a dud email address in the 'from' field.
You now have to make it clear that your unsolicited material is just that -- without the recipient having to open the message to see it -- and give a valid address and a simple means by which to unsubscribe.
The Advertising Standards Authority, whose reissued Codes of Advertising, Sales Promotion and Direct Marketing incorporate the new rules, has already upheld its first complaint -- made against a Southampton-based promotions company for sending unsolicited emails without recipients' prior consent.
Importantly, the new rules do not extend to companies that receive e-marketing, so b2b marketers are free to continue as they were, at least for now.
The Government decided that email and text messaging do not impose the real time disturbance and costs which justify corporate rights against phone and fax marketing (both regulated since 1999), but this may be reviewed in light of working experience of the new rules.
Finally, there is one striking anomaly in that companies are excluded, but partnerships and sole traders are not - the same rules apply to these as to consumers.
This is something of a mystery, particularly since the government recognised the inconsistency, which was in the draft regulations, when it responded in September to the public consultation. It left it in, saying it might point to further rights for corporates in the longer term.
On the face of it, it seems sensible that companies should be allowed to market to one another, including sending emails to their employees, without everyone becoming obsessed with privacy concerns.
Companies can still put up firewalls to block a good proportion of what they don't want and can also participate in the Direct Marketing Association's e-mail Preference Service, administered by the Direct Marketing Service in the US (see www.dma.org.uk), so the balance seems about right.
Nevertheless, the All Party Parliamentary Internet Group has already called for the DTI to ban the sending of spam to business addresses when it changes the rules on business-to-business cold calling, probably next year, particularly since it is not clear what is business spam and what isn't.
However, recent guidance from the Information Commissioner states that business email per se is outside the scope of the regulations, so that even promotional material with no business relevance will be legal provided it is sent to an individual at their employer's email address.
The regulations will present significant challenges to organisations which market to individuals or partnerships using email or other electronic media.
Marketers clearly need to consider the implications for the future, but also whether mailing lists compiled before 11 December 2003 are still usable in light of the new consent requirements and how the new rules might affect the use for marketing of bought in and rented lists.
For information on any of the issues discussed above, please contact the author at Marcus.Turle@ffw.com