AA Legal Documents
Law guide

Unsolicited marketing

Contents

Stopping unsolicited marketing

Direct marketing companies can only use your contact details to send you unsolicited marketing materials where you've consented to your details (personal data) being shared with third parties. This consent is usually sought from you when you sign up for services or buy products. If you have never consented to your personal data being shared or used for marketing purposes, then the use of your personal data will probably be unfair in terms of the Data Protection Act 1998. There are also codes of conduct and practice for the direct marketing industry which are administered by the Advertising Standards Authority and various industry schemes.

Electronic mail marketing

The most important thing to remember is that direct marketers can only carry out unsolicited electronic marketing if the person they're targeting has given their permission.

However, there is an exception to this rule. Known as the 'soft opt-in', it applies if the following conditions are met:

  • where a person's details are obtained in the course of a sale or negotiations for a sale of a product or service;
  • where the messages are only marketing similar products or services; and
  • where the person is given a simple opportunity to refuse marketing when their details are collected, and if they don't opt out at this point, are given a simple way to do so in future messages.
When direct marketers send an electronic marketing message, they must tell the recipient who they are and provide a valid contact address. The rules on emails don't apply to emails sent to organisations, though marketers must still identify themselves and provide a contact address.

The Telephone Preference Service (TPS) and Fax Preference Service (FPS) are operated by the Direct Marketing Association, and allow people to register their numbers to opt out of receiving unsolicited calls or faxes. Direct marketing companies must not market individuals or organisations who have registered their numbers with the TPS or FPS.

In summary, direct marketing campaigns must always be permission-based, and they must also explain clearly what a person's details will be used for. They should provide a simple way for recipients of the marketing materials to opt out of marketing messages, and they should have a system in place for dealing with complaints.

Postal marketing

Postal marketing (more commonly known as 'junk mail') can form an important part of any organisation's overall marketing strategy. From simple flyers and response forms to competition entries and interactive CDs, postal campaigns can generate important new leads and business.

However, as with electronic marketing, direct marketing companies must comply with requests from the person or organisation targeted by the marketing to be taken off the marketer's mailing list. There are no exceptions to this rule. Under section 11 of the Data Protection Act, if the marketing company fails to comply, the targeted person can apply to the court for an order to compel the marketing company to do anything which the court feels is appropriate in the circumstances.

The Mailing Preference Service (MPS) is a service set up by the direct marketing industry to help people who don't want to receive 'junk mail'. People simply register their details to prevent further mailings, and several direct marketing codes of practice specify that marketers should clean their lists against the MPS file. Many of the companies who subscribe to the MPS recognise the considerable benefits of the service as they save money, time and resources by not sending material to people who don't wish to receive it.

Listed below are the schemes that allow consumers to register their wish not to receive unsolicited marketing material or approaches.

Unsolicited addressed mail

The Direct Marketing Association has a self-regulatory preference scheme for consumers who do not wish to receive unsolicited addressed marketing mail. It can also provide advice on how to reduce the amount of unaddressed mail received. It also has detailed and helpful guidance on how to combat unwelcome or unsolicited direct marketing.

Unsolicited marketing faxes

It is unlawful to send an unsolicited fax to an individual, which includes consumers, sole traders and (except in Scotland) partnerships, without their prior consent.

There is a fax preference service, which allows businesses and individuals to register their wish not to receive unsolicited fax messages.

Unaddressed leaflets

To stop unaddressed leaflets delivered by the Royal Mail, consumers should write to the Direct Marketing Association.

Unsolicited telephone sales calls

It is unlawful for a business to make an unsolicited telephone call to an individual, which includes consumers, sole traders and (except in Scotland) partnerships, if that person has registered with the Telephone Preference Service.

Unsolicited marketing emails and SMSes

Complaints about unsolicited emails and SMSes should be reported to the Information Commissioner's Office.