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Will government bill herald new restrictive rules for marketers?

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26th Jan 2017
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It's hard to believe, but customer marketing may be at its most critical point ever. Day-to-day it continues selling services and products, and maintaining purchasing loyalty while many of those involved are almost universally unaware of the government bill that could change everything forever. 

The act nearing its final phase of Westminster consideration before Royal Assent is the Digital Economy Bill, and the element of danger in what is wide and far reaching legislation is a section that instructs the Information Commissioners Office to produce new direct marketing guidelines.   

This in itself may seem fairly innocuous until the background is considered. The ICO will be instructed to produce new recommendations for ministers to consider. But it knows and understands acutely that the number one subject for MPs' postbags is nuisance marketing, and in particular rogue telemarketing. It is also a favourite topic of the popular press. In other words, there is great pressure on the ICO to produce regulation that severely curbs direct marketing practice, and that means the ability to have dialogue with customers.

To get an idea of how restrictive rules may get there is a very real possibility an opt-in only rule for talking with members of the public would mean retailers could not call existing customers unless they have specific written authority to do so. 

The ICO is under a great deal of pressure to recommend regulation of this type. During debates on the Digital Economy Bill in the House of Commons, direct marketing came in for dire criticism. Mark Menzies, Conservative MP for Fylde, branded marketers as being the lowest of the low, and that they could not be trusted to abide by regulations.

"The companies that overwhelmingly engage in direct marketing are rogues and shysters," he said. "I say to Ministers and officials that we are basing a law on the hope that we are dealing with honourable people. We are dealing not with honourable people, but with the lowest of the low. They are people who are prepared to break the law as it currently stands and to prey on the vulnerable in their tens and hundreds of thousands."

Such criticism was matched by Labour MP Graham Jones, who declared there is a lack of transparency surrounding opt in opt out rules, and that it is a scam that generates large volumes of junk email.

"Ultimately, it is a scam in which information is sold on. Then we get that abundance of unwanted emails because someone has commercialised our data. That bulk commercialisation is unacceptable, and the Government have to step in," he said.

It is against this backdrop that the ICO is tasked with creating new rules, and it is unlikely that government ministers will look favourably upon anything other than significant restrictions on direct marketing practice.

Telemarketing in danger

What is under most threat is telemarketing. Clearly the Telephone Preference Service (TPS) is flawed, and has not worked effectively for a decade, if it ever worked at all. Currently it is a rogues charter in which members of the public receive nuisance calls, and ethical companies find themselves increasing marginalised as those that ignore the current rules avoid detection, or if they are caught simply go into liquidation and start up under a new name. It is a no-win situation for anyone but the lawbreakers.

The likelihood is that the ICO will conceive recommendation to tackle telemarketing based on an opt-in only system similar to that under which email currently operates. It means members of the public will have to invite calls from specific companies relating to specific subjects. Having such written permission would be the only circumstance in which legitimate commercial calls could be made, including reminders for things like changes to grocery orders, insurance reminders, and fraud alerts and service changes. Cold calling sales prospects would be completely out of the question.

However, there is something that can be done to create an alternative scenario. The editor of one of the UK’s leading direct marketing publications, Charlie McKelvey of Decision Marketing, has created a pressure group called Call For Action On The TPS. Its sole purpose is to come up with a viable alternative to TPS to put to politicians and the ICO as the new regulation model for telemarketing.

The primary consideration for the group is to create a system that firstly gives adequate protection to members of the public from rogue callers. The second is to create a situation in which ethically compliant companies have reasonable opportunities to call consumers, including customers, with relevant offers or reminders.

What is for certain is that there are not many that are promoting the interests of direct marketers that want common sense regulation.

The group, which has just been formed, is pooling its ideas based on the successful online communities in which scientist across the world pool research and ideas to invent and develop projects. Any interested party can join Call For Action On The TPS https://cfaottps.cmnty.com 

But there are other direct marketing rules that will be under consideration aside from telemarketing. Following Brexit it may have seemed logical to assume the General Data Protection Regulation (GDPR), or EU data law would no longer apply. But the Government has stated that the law will remain on the statute agenda and come into force in May 2018, as previously set out.

This will come as a surprise to many, but in fact, the Government has no choice in the matter. The law will take hold across Europe in little over a year, which could be before Brexit negotiations even open, never mind conclude. It is only after conclusion of exit from the EU that any decision to withdraw from GDPR could possibly happen. 

As part of its remit to produce new guidelines the ICO may simply put forward the idea that GDPR remain in place, or it may suggest keeping it in tact with minor amendments. Given that UK companies that sell into Europe will need to abide by GDPR it is unlikely the ICO will suggest brand new regulation and in doing so create a two tier scenario for international traders.

What is for certain is that there are not many that are promoting the interests of direct marketers that want common sense regulation. It is far from ironic that research shows most consumers want to receive commercial information, but on the subjects they choose. What is needed is regulation that satisfies both groups.   

So the question is what is the best way to achieve regulation that works from all perspectives? The answer is to talk to the ICO. Part of its instruction under the Digital Economy Bill is to consult relevant marketing representatives. Call For Action On The TPS has said it will be putting proposals forward. Other interests in direct marketing will have the same opportunity. Given the previous lack of commitment of the Direct Marketing Association (DMA), which did not respond to the call for ideas during the committee stages of the legislation, other groups will have to represent those that value the use of direct communication with customers. Talking with the ICO is a key consideration, and for those with political influence dialogue with ministers will be even more effective.   

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