They set conditions across many areas including the use of traffic and location as well as subscriber data and how directories are used. They also set out new regulations about how recorded-voice dialling systems, answering service and direct marketing via phone, fax, text and e-mail can be carried out.
Some people believe it’s impossible to regulate e-communications but it simply isn’t true. This set of rules are comprehensive and designed to cover all electronic means of communication. They can even be applied to website cookies. The rules state that cookies may only be sent in the instance the visitor is provided with ‘clear and comprehensive’ information stating that the cookie is present and what information will be gathered. Visitors also have to be provided with the right to refuse it.
Unsolicited Direct Marketing
These rules came into place to put a degree of control on companies using unsolicited direct marketing methods including emails, texts and instant messages. These types of communication are now regulated and place a liability on the part of the transmitter of said communications and the business or brand on whose behalf it is sent to provide the recipient with damages if a breach is discovered.
The rules state that unsolicited marketing communications can only be sent where consent has been given to receive such communications or where the set-out 3-point ‘existing customer test’ is met.
Three-Point Business Relationship Test
The above prior consent rule can be worked around if the three-point business relationship or existing customer test is met. The three conditions are:
• If the e-contact details of the recipient were given during the course of a sale or negotiations for the sale of a product or service.
• If direct marketing is in respect of the recipient’s similar products and services only.
• If the recipient has been given means of refusing further use of the e-mail address at all communication points.
These rules are extremely strict and apply to all e-communications methods. Text message marketing messages for example are subject to the opt-out register. However, there needs to be a way of sending unsolicited marketing, especially if you’re trying to generate new custom and the inclusion of a clear and appropriate opt-out.
Many data permissions fail due to a breach of the initial and continuing opt-out clause at the time the transaction took place or information was provided. The failure to provide a cost-free opt-out invalidates consent so you must ensure all subsequent emails include an opt-out facility.
These rules also make it an offence to send concealed source e-mails where the recipient doesn’t transparently see your contact details. It is important that both the details of the sender and if appropriate the person on behalf of whom the e-communication is sent must be included in the message.
What does this mean for you?
If you’re planning on using an e-mail marketing company or working with another firm for your business marketing ensure they are fully aware of the PECR, including changes made in 2011. That way you can be assured your business is doing things legally and correctly.