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Privacy & Online Advertising

A year on from the introduction of the PEC Regulations, businesses understand they usually need customer consent to send marketing messages. But, say Briffa, inconsistencies between the Regulations and the CAP Code have caused confusion...

By Paul Randle, Associate Solicitor, Briffa and Alex Papakyriacou, Trainee Solicitor, Briffa

A year on from the introduction the of PEC Regulations, businesses understand they usually need customer consent to send marketing messages. But, say Briffa, inconsistencies between the Regulations and the CAP Code have caused confusion...

The Privacy and Electronic Communications (EC Directive) Regulations 2003 (the Regulations) have been in force since December 2003. Most businesses now understand that they will usually need their customer�s consent to send marketing messages. The option for recipients opt to no longer receive marketing messages is a feature of all legitimate marketing emails.

However, the Regulations are not the only rules that apply in this area. The CAP Code regulates all non-broadcast advertising, including advertising online and by SMS. Revisions to the CAP Code issued in May 2004 introduced a stricter regime for advertisers engaged in direct marketing. Inconsistencies between the Regulations and the CAP Code have caused businesses difficulties in knowing which set of rules they need to comply with. These inconsistencies still exist, but recent guidance issued by the Information Commissioner and the CAP Help Note on Mobile Marketing make it possible to point to best practice.

What media do the Regulations and the CAP Code apply to?
The relevant provisions in the CAP Code apply to �marketing communications by email or to mobile devices�. The Regulations apply to a variety of electronic means of communication and so marketers should be careful to ensure compliance when delivering unsolicited marketing messages through any electronic means.

What type of recipient do the Regulations and the CAP Code Apply to?
The CAP Code applies to marketing messages sent to all customers. However, the Regulations do not apply to unsolicited marketing emails sent to company email addresses, including the email addresses of employees of a company. It should be noted that the Regulations do not allow messages to be sent to email addresses registered to partnerships or sole traders. Because the CAP Code applies to all email addresses, the best practice is that all marketing communications should comply regardless of the recipient.

What form of consent do I need to send marketing messages?
In order to send marketing messages you will usually need to have the explicit consent of recipients, known as an �opt-in�. The most common way to achieve this is to have individuals enter a tick in a box on a form or a website. However, this is not the only method and the Information Commissioner�s Guidance states that �Consent can be defined as a freely given and informed indication of agreement to receiving marketing communications�. Any positive indication confirming that the individual agrees to receive marketing communications is sufficient. However, the absence of a mark notifying the marketer that the individual objects to receiving marketing messages will not suffice.

Is there any circumstances where I do not need to give explicit consent?
A �soft opt in� allows for the sending of unsolicited marketing messages where explicit consent is not obtained. Where a consumer has previously purchased or entered into negotiations regarding a product, both the CAP Code and the Regulations allow for marketing messages in relation to similar goods and services to be sent to that consumer. The level of �negotiations� need not extend beyond a request for a brochure, making this an extremely useful exception. Also, the definition of �similar goods and services� is wide enough to cover items which the consumer expects the business to provide. So an online retailer of I.T. goods could send information about hardware products to a customer who asked for information on software. However, marketing messages related to a new and distinct line of products which are not normally associated with I.T. such as music CDs would not be covered. The �soft opt-in� does not dispose of the requirement of an opt-out on every marketing message.

What information must appear on marketing messages?
Marketing messages must clearly identify the organisation which prompts the sending of the message and provide a valid address for that organisation. They must also give recipients the option to opt out of receiving further messages in the future. While it can be difficult to include all of this information in an SMS which only has 120 characters, it is still required. The information should be arranged as a line of characters, similar to that shown in the example below:
�BRIFFABUSINESSDESIGNCENTREUPPERSTLONDONN10QHSTOPMSGSTXT�STOP�TO12345�

What happens if somebody elects to opt-out?
It will often not be enough to simply delete the contact details of an individual who elects to opt out. Contact details are often purchased from lists and because the details of a person who �opts out� may appear on such a list you need a mechanism to prevent marketing messages being sent to such individuals. The best practice is to suppress the details of such individuals, meaning that a record is kept of their details ensuring that no messages are sent unless the individual changes their mind and expressly consents to receiving marketing messages.

About the authors:

Briffa is a modern legal practice specialising in intellectual property � the protection of copyright, designs, patents, trade marks, trade secrets and information technology. Our lawyers all have excellent legal backgrounds and are experts in this field. www.briffa.com

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