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The Price Of Spam Is Going Up: Are You Ready?

The Price Of Spam Is Going Up: Are You Ready?

We have all been on the receiving end of nuisance calls, texts and emails.  It is difficult to recall a time when the ringing of your phone was a sure sign of incoming good news, a dinner invitation, or the chance to catch-up with an old friend.  Our personal email accounts are full of promotions for things we will never buy, and our mobiles are buzzing with text messages about claims we have for accidents that we don’t even remember having! It is no surprise then that the number of complaints coming from people suffering nuisance calls, texts and email has increased significantly in the past few years. Figures released last week show that this February alone, the UK’s privacy watchdog, the Information Commissioner (ICO), received over 11,000 complaints about nuisance calls and texts.

So what’s new?

To help tackle this problem, the ICO has now got the new powers he has been calling for. From 6 April this year, fines of up to £500,000 can be issued by the ICO to any person who breaches legislation by sending unsolicited calls, texts, faxes or emails. Previously, the ICO could not issue fines for unsolicited marketing in most cases because he had to show “substantial damage or substantial distress”, and for most of us it is simply a nuisance rather than distressing.  The new legislation removes the need to show damage or distress, which opens the door to fines for nuisance alone.

Significantly, the new powers also allow the ICO to fine any ‘person’ who breaches the legislation, whereas previously the power to fine applied only to the ‘data controller’. This means that the individuals making decisions about marketing can be fined directly, and cannot hide behind the face of the organisation they work for, or behind a limited liability company.

What does this mean for you and your business?

In short, the risks attached to any marketing you do by phone, text or email will increase from 6 April. Take a closer look at your marketing strategy, and check that it complies with the law in this area (the Privacy and Electronic Communications Regulations 2003 and the Data Protection Act 1998).  Here are some top tips:

  • TPS Check: Before you make live marketing calls, check your list against the Telephone Preference Service and don’t call anyone who has opted out.
  • Valid Consent: Check you have a proper, valid consent before marketing to anyone by pre-recorded call, email or text – small print using an opt out box will not be enough.
  • Opt out : Give a clear and easy opt out with every marketing text or email you send.
  • Update Databases: If someone takes the time to opt out of marketing, update your database promptly to make sure they don’t get anything else – and screen against this list every time there is a new campaign.
  • Buying in Lists: Don’t rely on marketing contact lists provided by a third party unless you have seen evidence that you were named in the consents given by those on the list.
  • Take Care Before You Share: Don’t share your contact lists with third parties unless you have got specific consent naming who you are sharing with.
  • Use the Right Technology: Put in place good quality databases that can be easily organised and updated to record what consent you have and what it covers.

What’s next?

The ICO has already launched a blog on what it has been doing to enforce the law against nuisance callers and spam texters, https://ico.org.uk/about-the-ico/news-and-events/pecr-live-blog/ - it is clear from this that nuisance calls and texts will be the immediate focus. As with all ICO enforcement, the worst offenders will be hit the hardest. For example, last week’s dawn raid by the ICO on a PPI claims company was in response to six million nuisance calls in just one day.

Although most businesses are not calling six million people a day, responsible businesses should be mindful that the powers the ICO now has give far greater flexibility to fine for any breach of marketing laws. Whilst initially the focus may be to stamp out the obvious larger scale breaches, it is inevitable that going forward the approach taken to risk in marketing campaigns will need to change to avoid the risk of fines.

Helena Brown