In a recent letter from George Kidd, the DMC’s Chief Commissioner to the new Information Commissioner, he said he hoped to build on the DMC’s strong relationship with the ICO. Self-regulation, he said, is in part about driving compliance with national statutory requirements within a sector as well as setting sector standards. He agrees with the newly appointed Information Commissioner, Elizabeth Denham who, in a recent speech about accountability and GDPR, said that “it’s clear that a lot people feel they’ve lost control of their own data. People feel that keeping control of their most important information used to be simple, but that over the years, their sense of power over their personal data has slipped its moorings.”
The DMC has taken and investigated complaints about marketing and ‘lead generation’ activities and it has set out its concerns over the reliance some businesses put on consents to marketing that are as unclear as they are old. The DMA are taking up this challenge with testing and audits within their newly revised compliance process. Given the various live issues around data-sourcing, the nature and clarity of consents and the form and content of marketing in some industries, the DMC’s Annual Report gives some assurance as to the generally high and wide levels of compliance with the new DMA Code.
The DMC’s annual report can be downloaded from http://www.dmcommission.com/wp-content/uploads/2017/01/DMC-Annual-Report-15-16.pdf
The Direct Marketing Commission warmly welcomes the announcement by BT of new customer services that prevent spam calls.
In 2014 in our Annual Report and in evidence to an All Party political group we argued the case for action at the network level alongside regulation, co-regulation and work to inform and empower people. It has been a long-time coming but it is good that this is now happening. We would look to all fixed and mobile carriers to look at how this protection can be assured for all.
For our part the DMC has taken and investigated complaints about marketing and so-called “lead generation” activities. We have set out our concerns over the reliance some businesses put on consents to marketing that are as unclear as they are old. The Direct Marketing Association are taking up this challenge with testing and audits. It is important these are set against clear and challenging requirements.
This is part of the “jigsaw solution” that looks necessary here as in other fields of consumer protection. Smart use of technology and meaningful industry expectations sit alongside action to educate and empower users and regulation. For our part regulators must learn from our past experiences.
Treating every sector and every service the same makes no sense when the commercial drivers and the nature of the customer relationship vary dramatically. Anyone looking at how the incentives, personal injury and PPI businesses had to reach out and capture clients should not have been surprised at how some of them went about their business. Sudden shifts in circumstances can stimulate rapid and sometimes unacceptable responses from those who want to get high benefit from the changes.
As soon as the Government suggested a far more liberal regime from taking funds from pension funds the DMC flagged the risk both of rogue activity but also of high volume and aggressive marketing to the millions who might be tempted to take advantage of the changes. Our worry, learning from past events, was that some stampede to win this business would outweigh any duty to respect TPS registrations and regulations on e-mail and other digital marketing. This ability to identify terms and risks is something self-regulation should be good at – and it’s something statutory regulators need to learn if they are to do more than sweep up the damage after it has occurred.
Two problems continue to bother consumers in 2016: clarity of consent; and how far that consent extends to third parties according to the Direct Marketing Commission’s annual report for 2015/16.
Complex supply chains and confusion over consent represented the biggest concerns to consumers in 2016 according to the annual report of the Direct Marketing Commission, the independent body which investigates complaints made about DMA Members.
In 2016 the Direct Marketing Commission recorded 230 complaints between 1 July 2015 and 30 June 2016. Those unrelated to DMA Members were passed to the relevant authority where possible. The DM Commission tackled 48 separate cases in total: 40 consumer complaints and eight business complaints.
During the year in question, the Commission Board formally investigated six businesses, four of which were found, following a complete adjudication process, to be in breach of the DMA Code.
Of the 48 cases, 35 (73%) related to data, privacy and quality. These cases often related to complex supply chains where insufficient due diligence meant the original consent or lack of consent had been overlooked, in breach of the DMA Code.
DM Commissioner George Kidd said, “In almost every case the Commission considered we found ourselves looking at lengthy supply chains that resulted in messages and calls to people who had made clear they did not want these and had not agreed to them,” he said.
Kidd is keen to remind DMA Members that failure to conduct sufficient due diligence could result in reputational damage for the supplier, agency and brand. “It’s simply not good enough just to say ‘I didn’t know’, ‘I work on a basis of trust’, ‘my suppliers filled in a form saying they would behave’ and ‘it’s not my fault; someone let me down’,” he said.
He said that consistent complaints about, “These issues with sub-contractors, call centres and ill-managed data supply chains prompted the Commission to raise matters with the DMA.
“We are delighted the Association has started a process of audit and review of data broker and lead generation businesses to ensure they have the processes and the practices in place to ensure the consents they secure and the data they supply are clear,” he said.
The DMC Annual Report can be downloaded here at dmc-annual-report-15-16
The data we collect on our customers and the data they give us is at the heart of everything we do as marketers. Of all of this data, the most important is how and when they gave (or renewed) consent to receive communication from your business.
The collection of this consent is something covered in the GDPR as needing to be ‘explicit’ and ‘unambiguous’. This means brand businesses will no longer be able to use pre-ticked boxes and justify consent through inactivity or silence.
But what happens once you have that consent? The law says that consent is given ‘for the time being’, but with the ICO adding that ‘consent decays over time’ what is the lifespan of consent? Unfortunately, this is where the laws and guidance become less specific.
The ICO has made a recommendation for third party data that consent should be considered invalid after 6 months. In essence, this means that marketers would have six months from the initial collection for first use.
On the topics of postal and all first party marketing data, however, there are no timeframes offered in the ICO’s guidance to date. That’s why the DMA’s Responsible marketing committee is launching a new consultation process open to all members to ask for your thoughts on how long you believe consent should last and how we should go about setting this as a standard for our industry. This may vary depending on the sector, vertical, channel and any number of other factors, but as responsible marketers we should be able to agree on a minimum standard.
The link below will take you through to a brief survey where you can offer your thoughts anonymously, unless you’d like to leave us your email address to continue the conversation further. The survey will run until 17th October and if you have any further questions or thoughts you would like to share with the committee, please contact Rosie Atherfold on email@example.com or on 020 7291 3300.
By Skip Fidura, Chair of the DMA’s Responsible marketing committee
The DMA has announced the introduction of an additional compliance audit for all companies that buy and sell data. In line with the DMA’s drive for the highest standards and a responsible approach to data-driven marketing, the audit has been introduced to provide additional assurance to brands and reinforce the importance of only working with DMA member companies.
DMA member businesses that buy or sell data will be asked to go through an external audit that has been designed by the DMA, and will be conducted by an independent third party. At launch, the DMA has partnered with DQM GRC to conduct these audits.
Rachel Aldighieri, MD at the DMA, comments: “In an increasingly connected world, data forms the backbone of many businesses. Customers need to be able to trust that any data a company has on them will be treated in the correct way and that any business is being transparent about how they want to use that information. The updated compliance process ensures that DMA members continue to work to the highest standards and that membership remains a badge of accreditation that can be trusted in a data-driven world. Using an independent third party brings specialist knowledge in this area and ensures objective scrutiny so that the audit process is as stringent as it needs to be.”
Fedelma Good, Director, Information policy & business controls at Barclays, added: “In today’s digital era, every interaction has the potential to create new data on existing or prospective customers. It’s crucial that everyone – whether brand, marketing agency or supplier – embraces fully the objectives of transparency and trust when it comes to the gathering and use of this data so that confidence in digital and direct marketing is consistently reinforced. The DMA’s extension of its compliance process means that when we’re working with another member, we can be sure we’re working with a likeminded business that is accountable and acts responsibly.”
The updated process for those companies buying and selling data who wish to join the DMA will be implemented immediately. Existing members of the DMA that fall into this business category will be made aware of the need for an external audit a minimum of three months before their scheduled renewal date in 2017.
In 2015 the actions of data brokers came under tremendous media scrutiny. The work of the Direct Marketing Commission (DMC) over 2014 to 2015 has reflected these developments while investigating those DMA members that have been the subject of complaints.
Between 1 July 2014 and 30 June 2015, the DMC received 262 complaints direct from the public. Of these, 60 related to DMA members and the remainder were referred to the appropriate statutory or self-regulatory body. There were five formal investigations and most of these involved issues that had affected many of the general public and had been the cause of hundreds of complaints to other bodies or media criticism.
In two cases the Commission upheld breaches of the DMA Code. In three cases the Commission set out where it thought reforms were need to ensure compliance with the DMA Code. In all cases the changes were agreed. In each case the Commission shares its findings with the DMA and it has been an active contributor to initiatives by the Association to ensure DMA membership is seen as proof of a commitment to standards and trust in the market place.
Complaints have typically been around consent to marketing calls and messages, how and when it was given, and how the data was then used.
“The DMA Code says members are responsible for the proper sourcing, consents and cleansing of the data they trade and that members are responsible for the actions of their suppliers. The DMC wants to make sure that these rules are applied. We see it as a problem if things go wrong and members tell us they relied on the assurances of others that consent has been given for the use of data but did nothing to check that this was true.
“It’s simply not good enough for people to buy and sell data if they have no means of satisfying themselves that the people involved have given consent for the information to be shared in the way proposed.
“Consent is something people give, not something that is taken,” said DMC Chief Commissioner George Kidd.
From 1st January 2016, the DMC has appointed two new Industry Commissioners to help in its work – Fuel CEO Charles Ping and Fedelma Good, Director of Information Policy and Strategy at Barclays, who replaces retiring Commissioners David Coupe and Danny Meadows-Klue. We thank David and Danny for their hard work and commitment to the DMC.
Both Charles and Fedelma are data specialists. Fedelma Good began her career in banking in Dublin, gaining her MSc in computer science, and then moving to London where she further built her career with Deloitte, Equifax, Acxiom and running her own consultancy before going back to banking, this time with Barclays as Director of Information Policy and Strategy.
Charles has more than 25 years’ experience as a client, a supplier and running an agency. He is also a former chair of the Direct Marketing Association, and for the past 10 years has been a non-executive director of the Advertising Standards Board of Finance, which regulates non-broadcast advertising.
The DMC’s annual report can be downloaded from http://www.dmcommission.com/wp-content/uploads/2008/08/DMC-Annual-Report-2014-15.pdf
George Kidd, Chief Commissioner has received this year’s Roll of Honour award from the DMA for his services to the direct marketing industry.
George Kidd said: “I was surprised and delighted to be added to the Roll of Honour. I see it as recognition of the work of the Commission as a team and of the ways in which the DMA has focused on the user experience of direct marketing, investing hugely in an amazing new Code that deals with the big picture issues of privacy, honesty, taking responsibility for services and conduct and diligence in managing data. In less than ten pages the Code sets standards we can all understand, that few could debate and that we can all follow. There are lessons here for lawmakers: less is more!
Please here see link to DMA website.
A data journey is the path travelled by a consumer’s data throughout its use. We think that visualising the data journey allows us to see how data has moved from one step to another and we can signpost different clauses or possible breaches at each step identifying problems. Please see here for an explanation of this process and an example of a case that we investigated.
George Kidd, Chief Commissioner said: “There is a need in this day and age to look beyond the behaviour of one party that is complained about and understand the whole process. With food it might be how produce gets from the field to the plate. In our case, it is a data journey. Only by understanding how someone’s data is obtained, what they understand of that and then how the data is added to, bundled and sold on, can we understand why and when we get calls, e-mails and other marketing messages from unexpected sources.”
The Commission recently conducted adjudications on two companies which were the subject of extensive coverage in the Daily Mail earlier this year. The allegations in the newspaper were serious and the Commission looked carefully at the conduct of the two businesses which were allegedly sharing sensitive data inappropriately and without adequate consent.
George Kidd, Chief Commissioner said: “These key investigations highlighted the importance of transparency when buying and selling data, in particular, data which is perceived to be sensitive. Businesses need to do their due diligence to assure themselves that the data they are buying is properly sourced and permissioned before they pass it on to other parties. When data is bought and sold across an extended supply chain and it is not clear as to the source or origin of that data, this will result in the public frustrations which we have seen from consumers and which have been highlighted in recent press coverage”.
The Information Tribunal has awarded Reactiv Media an fine of £75,000, increased from £50,000 during an appeal hearing held in York last week. Reactiv had consistently called consumers registered with the Telephone Preference Service (TPS).
The story begins last year, when Reactiv Media, then a DMA member, was investigated by the Direct Marketing Commission (DMC) for making nuisance calls about spurious PPI claims to consumers registered with the TPS.
The DMC concluded that Reactiv should be expelled from the DMA in April 2014.
George Kidd, chief commissioner of the DMC said, “Other telemarketing companies have worked with us and turned past problems around. Those who use companies like Reactiv Media to generate leads share a responsibility. They should not be encouraging firms to bend or break rules that are there to make sure the public’s wishes are respected when it comes to telemarketing.”
Reactiv Media then came under the scrutiny of the Information Commissioner.
Between 13 November 2012 and 31 December 2013, the TPS received 481 complaints about Reactiv Media, and referred those complaints to the Information Commissioner. The Information Commissioner received a further 120 complaints.
In July 2014, the Information Commissioner issued a fine of £50,000 to Reactiv Media for ‘bombarding people’ with nuisance calls. The full notice is here.
Reactiv Media then appealed this decision.
In the appeal decision, which reported its findings on 13 April, the tribunal concluded that Reactiv Media displayed, “A culture of denial and minimisation of the breach, weak governance of the company and a tendency to blame others rather than accept responsibility. There is little evidence of robust policies and procedures coupled with a culture which properly respects telephone subscribers and their right to privacy.”
In addition, when the Information Commissioner awarded the initial fine, it had limited access to Reactiv Media’s financial records, and was “Hampered in its consideration by the lack of co-operation from the company.”
The appeal hearing gave greater access to the company’s finances, and concluded that not only should the sanction stand, but the fine should be increased by 50% to £75,000.
Assistant manager of the TPS, Arthur Cummins, was a key witness. “Mr Cummings, Assistant Manager of TPS demonstrated the robustness of the procedures used by the TPS to ensure that only eligible complaints were processed. He confirmed that Reactiv had been in the top 20 most complained list for five months in 2013, most recently in October 2013 but had not figured subsequently. He gave clear and convincing evidence which the tribunal accepted.”
By Ed Hall, DMA PR & Content Manager
From April, new pensions rules will give hundreds of thousands of those aged 55 and over direct access to their pensions and large sums of cash for the first time.
In the first four months, pensioners will remove an estimated £6 billion of cash from their pensions, which will in turn create many new selling opportunities for brands. However, lessons from PPI and accident claims should serve as a warning.
With this in mind, the DMA has created a toolkit for marketers.
This guide will help ensure your marketing activity meets the expectations of consumers.
We have included helpful at-a-glance information for brands to share with their customers including some to help them understand what to do, should their retirement be disturbed and they receive unwanted one-to-one pensions-related marketing.
Advice for brands to share with customers
Consumers generally object to nuisance calls, which are usually the result of poorly targeted or irrelevant marketing. Such calls are often illegal and in breach of the DMA regulations.
Annoyance is an issue but problems can be worse, particularly for vulnerable consumers. Consumers must be reassured that they can opt-out of future telemarketing calls if they wish.
The DMA runs the Telephone Preference Service (TPS) on behalf of Ofcom. Consumers can register their mobile or home telephone number to the service free of charge and opt-out of future marketing. Consumers can sign up to the service here
If a person continues to receive unwanted nuisance calls in spite of TPS registration then they may complain to the Information Commissioner’s Office (ICO), which is the regulator in charge of enforcement, to report the offending business. The more information a person can provide to the ICO the better, in particular:
- the organisation responsible for the call
- the number the call came from
- the date and time of the call
- the nature of the sales/marketing that occurred during the call
Complaints can be made directly to the ICO by ringing their helpline on 0303 123 1113 or by visiting their website
Beyond nuisance calls, financial scams are another potential problem. Such calls may start as nuisances, but develop into something else. Such calls are likely to fall outside our remit, and may be more appropriate for the police. However, there are two more sources that can be helpful for consumers:
- The FCA’s Smart Scam Investor for advice on avoiding scams.
- The Pensions Regulator also offers advice on how to avoid pension scams.
The Government will provide free, impartial advice to anyone who wants to know more about the pension changes, to help people make informed choices.
This advice will be available:
Lead generation activity and marketing calls
Firms engaged in lead generation work should be up-front about the purpose of calls and be clear about the identities of those parties they intend to share information with. They should not call TPS registered consumers unless they not only have consent to do so, but can also demonstrate they have this consent.
If your firm uses data supplied by third parties (such as lead generation companies) then your marketing activity is not exempt from TPS responsibilities. Your firm could be held responsible for calls made to consumers registered with TPS without named consent. Action could include action by the ICO and dismissal from the DMA if our laws and Codes are wilfully broken.
- put the customer first;
- respect privacy;
- be honest and fair;
- protect your customers’ data; and
- take responsibility for your actions.
Good one-to-one marketing is an exchange between business looking to prosper, and the customer looking to benefit.
Telemarketing guide – The DMA has produced channel-specific guides, and marketers should read these to learn about industry best practice. Telemarketing will come under intense scrutiny once these pension changes come into force. Marketers need to uphold the highest possible standards.
Picking up the phone and having a conversation can be a tremendously powerful way to convert a consumer into a customer. As the experiences around PPI demonstrate, it’s also easy to get it wrong. Getting it right is more important than ever. The Telemarketing Guide will help you get it right.
Vulnerable consumer guidelines – Those aged 55 and over are more likely than the rest of the population to be considered vulnerable, due to age-related illnesses. Marketers should factor this into any campaign aimed at older consumers. This guide is for call centre staff who may come into contact with vulnerable consumers. It includes a step-by-step guide to spot a vulnerable consumer during a telemarketing call, and how to best communicate with that person. The guide includes details for managers on how to ensure their staff behave responsibly in their contact with vulnerable consumers.
Email guide – Email is generally something consumers have opted into, so consumers have already consented to contact, which makes email less of an issue. This guide contains great tips for using this channel effectively.
Mobile guide – Like email, SMS is another opt-in channel, so consumers will expect contact. The mobile guide takes marketers through many of the other communication channels available via mobile and other devices, including proximity marketing, geolocation and more.
The Direct Marketing Commission is formally investigating two companies following allegations in the Daily Mail that personal data was shared inappropriately and without the consent of users.
The two companies are:
- B2C Data Ltd, based in Milton Keynes
- Data Bubble, based in Bradford
DMC Chief Commissioner George Kidd said:
“The allegations in the Daily Mail are serious. People must be able to trust those with whom they share their data. We will look carefully at the roles and conduct of these two companies and advise the DMA on our findings quickly.”
The DMC will determine whether either company has breached the DMA Code. All companies that are members of the DMA are expected to follow both the spirit and the letter of the DMA Code.
Congratulations to the Direct Marketing Foundation for commissioning research into complaints about one-to-one marketing.
I am not saying I buy into all the numbers and every conclusion in the report – particularly the millions of complainants implied when the sample data is extrapolated. But I feel the research tells us a lot.
It shows direct marketing is all but universal – 95+% of those surveyed were getting mail, e-mail and calls. Unfortunately, two-thirds or more of those surveyed had an issue with the marketing received. And only one in four to one in ten “complainants” were satisfied with the outcome of their complaint.
That is an awful lot of hacked-off people. What does the report tell us about why?
It tells us we have little feel for the cumulative effect of all the marketing that is going on. Firms may make no more than 2 repeat calls a day or send e mails only every third day ….but any single individual might be getting 10-20 calls a day and 50 -100 e-mails a week when everyone’s messages are tallied.
It tells us different forms of marketing have different impacts on people and that these differences in tolerance are still there when the volume of marketing goes up or down.
It tells us people place huge value on relationship and relevance: that they are far less likely to complain and far more likely to engage if they have a past relationship with the entity that is marketing and the material is relevant. Unsurprisingly, they also respond best when there is a value-exchange: when there is something for them as well as something for you in the engagement.
It tells the industry it should be more honest in its messaging. I see too many cases at the DMC with invented and transitory trading names to conceal lead generation as the real purpose of a call or mailing to understand. I see why the public are sceptical and cynical. Are you really doing yourself a favour with this sort of badging? It makes business sense for customers to get to know you. If you don’t want them to do that perhaps we or others should be looking at the sense in your business?
It tells the sector that it needs to listen more: 91% of those surveyed said it should be easier for people to opt out of receiving marketing, and 82% said they feel badly towards organisations that send irrelevant material. Are you pouring money down the drain when you needn’t?
There’s a message here saying preference services need to work. If they do not the complaint levels will be higher than if the service had not been there in the first place.
Reading across the report there are a couple of big-picture messages I took. The first is that “one size does not fit all”. It has been painfully obvious through the PPI personal injury debacle that there are firms in this and perhaps every sector who have no long-term ambitions, little or no brand to promote or protect and whose “business model” is anchored in reckless prospecting or marketing designed to confuse or mislead.
It’s all very well Which? saying every firm should have a director charged with data responsibilities and for Future Foundation to laud O2’s complaint handling. Not everyone is O2. Not every business aspires to be O2. What works for mobile networks does not work for funeral directors and what works with them does not work with affiliate marketers for pension-miss-selling claim management companies! Regulators need a better understanding of the dynamic of markets and the drivers in them.
This goes to my second thought – we need to look generally and then on specific issues at the best way to put the customer first. Future Foundation seem to want more and more of us to complain in the expectation the Government and its agencies will get tougher and tougher and the world will become a better place. I do not think this old-school approach works.
I believe in a Pre-empt, Prevent, Protect agenda – working to build understanding, compliance and coverage as DMA has with its new Code, doing risk assessment work as we have started to do with possible new cold-call activity and heading problems off through prevention where possible and far faster targeted “protection” work when necessary. In that regard the mechanical way state regulators seemed to respond to the PPI issue could be a case study in how not to do things. Doors are being bolted but many of the horses have gone. Let’s learn a little!
The head of the one-to-one marketing industry’s watchdog, the DM Commission (DMC), has said that marketers must now look beyond “complying with the law” to following principles that “put their customer first” to win trust, create effective marketing and prevent consumer complaints.
The comments, made by the DMC’s chief commissioner George Kidd, follow the publication of the watchdog’s annual report this month (January 2015). The report recorded 103 investigations into companies alleged to be in breach of the DMA Code, the one-to-one marketing industry’s self-regulatory code of best practice.
The majority of complaints received were from consumers about invasions of privacy and so-called ‘sharp practices’, and were backed by thousands more complaints to bodies including the Telephone Preference Service and the Information Commissioner’s Office. Two companies were expelled from DMA membership following investigations by the DMC.
The DMC is the independent watchdog responsible for enforcing the DMA Code. In August 2014, the DMA launched a new principles-based code of practice. The new DMA Code comprises five principles that make putting the customer first the priority, rather than just complying with the law.
According to Kidd, the majority of complaints logged and investigated would have been avoided if marketers followed these principles and complied with the interests of their customers:
“The overwhelming majority of marketers understand the law and know what they can and can’t do when it comes to using people’s data. However, there are many who play fast and loose with the rules. As the nature of the complaints show, consumers don’t focus on whether or not marketers are or are not breaking a law or regulation. They are angry when they feel deceived or misled when their requests for privacy are ignored and when they think their personal information is being sold on.
“Marketers therefore must look beyond complying with the law and standards of best practice to complying with their customers’ wishes. Doing so is essential for creating effective marketing, earning consumer trust and preventing complaints. Following the DMA Code is the route to putting their customer first at all times.”
This month (January 2015), the DMC has appointed its new independent commissioner. Dr Simon Davey will succeed The Very Revd. Professor Martyn Percy, Dean of Christ Church, Oxford, who has now completed his term of office. Dr Davey is a former Chair of the Standards Committee for the London Borough of Bromley and is an associate of Cass Business School’s Centre for Charity Effectiveness. He is the founder of Emerging Scholars, a programme to grow ability, belief and character in disadvantaged girls and co-developed Inspire IT to empower marginalised young people.
The DMC’s annual report can be downloaded from: http://www.dmcommission.com/wp-content/uploads/2008/08/DMC-annual-report-2013-141.pdf
There have been growing instances of nuisance callers and criminals deliberately changing the Caller ID, a practice known as ‘spoofing’. See here for OFCOM’s advice on what you can do if you think you have been a victim of Caller ID spoofing.
As Chair of the Direct Marketing Commission (DMC) I am pleased to announce some revolutionary work in self-regulation in direct marketing.
The Commission enforces the DMA Code of Practice, which applies to over 1000 DMA members and helps to protect consumers and create a climate for innovation and investment. Complaints to the DMC are relatively few in number but they are often an indicator of a problem with wider impact that needs to be addressed. In recent cases our intervention based on one or two direct complaints ended practices that had actually generated over 1,000 complaints to the Telephone Preference Service, the ICO and others.
The DMA Code we inherited was over 170 pages long. It contained extracts from legislation, industry-specific rules and packets of best practice. And it was structured based on a series of sub-sectors of marketing like mobile marketing, direct mail, data collection and telephone centre operations. It proved “more is not better”. It was hard to read, let alone follow. It made little sense for consumers and chunks of it were of little relevance to us as the enforcement arm.
You can view the new DMA Code of Practice here. It is wholly outcomes-based and anchored in the principle that businesses must put customers first. It focuses on four core themes:
Respect for privacy
Being honest and fair
Treating data with care
Taking responsibility to deliver what you promise
The Code rules run to only five pages. The whole document including annexes and glossaries is just twelve. It is simple, clear and strategic in nature. It gives enforcers scope to apply good judgement. It is a framework that is inclusive: spurring businesses to commit, not scaring them off. It is also a framework that should have meaning and relevance across the marketing spectrum for member and non- member companies alike, raising standards to the benefit of consumers.
The Code is not a stand-alone. As part of this exercise the DMA has updated the guidance it gives members on laws, compliance and responsible and effective marketing right across the board. The DMA Guides detail how members can achieve the outcomes set out in the DMA Code.
No Code or piece of legislation is a “cure-all”. There are challenges to address the collection and use of data, with the permissions people give to sharing of information and with preference service schemes that allow us to manage what we receive. We want self-regulation to be a valuable and effective part of the mosaic of consumer empowerment and protection alongside the ICO, Trading Standards, Citizen’s Advice and others who work to educate, inform and protect.
I think it is hugely to the credit of the direct marketing industry that they have invested in this Code, in the legal and other compliance advice they give and in the Commission as an investigative and adjudicatory body. I think the importance of industry setting and giving meaning to standards will matter more and more in a digital world in which state agencies may not have the remit or capacity or processes to deal with every risk and challenge.
I hope you find the Code stimulating. Just having the confidence to use those seven words shows how very different it is!
Adopting the DMA’s new code of practice will be central to the industry’s efforts to address customer concerns about one-to-one marketing such as data sharing, according to the trade body’s executive director Chris Combemale.
Speaking at the launch of the new DMA Code, which covers all data-driven marketing activity, Combemale said that it will change the industry’s mindset:
“We’ve taken a new approach to self-regulation that recognises the need to focus on principles that go above and beyond compliance with the law. It’s perfectly easy to follow all of the details of regulation and yet fail to meet the expectations of the customer, such as how you use their data.Gonflables Noël
“Our Code centres on five principles to inspire the industry to serve each customer with fairness and respect. Marketing with customers not at them is imperative to fostering trust and achieving commercial success.”
The DMA is now encouraging other businesses to adopt the code, which comes into force in two weeks on Monday 18 August.
According to Combemale failure to do so will come at a cost to UK plc:
“The hero principle of ‘putting your customer first’ demonstrates the evolution of our industry. Each marketer and organisation should see one-to-one marketing as an exchange of value between its business looking to prosper and its customer looking to benefit.
“Data fuels the digital economy, so earning customer trust is a commercial imperative. Brands must make every effort to ensure that they always collect and use consumers’ data in ways that they expect and benefit from.”
The DMA developed the Code after an 18-month consultation process with industry stakeholders, including practitioners as well as government regulators Ofcom and the Information Commissioner’s Office. The Ministry of Justice and Department of Culture, Media and Sport also provided input.
The DMA Code will be enforced by the industry’s independent watchdog, the DM Commission.
The DMA Code is backed by a series of channel-specific ‘guides’, which cover recommended best practice and compliance with regulations.
More than 1,050 corporate members of the DMA, which includes the industry’s top agencies, adhere to the DMA Code as a condition of membership.
The DMA Code and guides are available via the DMA’s website: www.dma.org.uk
The Information Commissioner’s Office has served digital marketing company Reactiv Media Limited with a £50,000 fine after an investigation discovered they had made unsolicited marketing calls to people registered with the Telephone Preference Service. Reactiv Media was a member of the DMA until April this year and was subject to the industry’s self-regulatory Code of Practice. The DMC had previously found Reactiv Media in breach of key rules in relation to privacy and telemarketing. The company, unlike other members of the Association, seemed disinterested in working with us to improve their practice. In March 2014 we recommended to the DMA that they were removed from membership and we reported our findings on this and other cases to the ICO early June. The case shows why self and statutory regulation needs to work hand in hand, with the DMC stepping in on this and other cases to push for change and compliance, and with the ICO present to deal strategically with those who sadly seem intent on not playing by the rules – or the law.
Full details of the adjudication can be found at http://www.dmcommission.com/adjudications/2014/04/complaints-against-direct-marketing-reactiv-media-consumer-helpline/ and http://www.dmcommission.com/adjudications/2013/10/reactiv-media-complaints-about-direct-marketing-2/.
Please also see our Consumer Alerts page at http://www.dmcommission.com/consumer-alerts/ for further information should you have a complaint.
The DMA has expelled Reactiv Media from its membership after the industry’s watchdog upheld complaints made about the company for making PPI nuisance calls.
The Direct Marketing Commission (DMC) received complaints from consumers registered with the Telephone Preference Service (TPS) about West Yorkshire-based Reactiv Media for unsolicited live calls on PPI mis-selling between April and September 2013. The DMC found failures over consumer consent, the requirement for named third-party permissions and identifying themselves when making calls and concluded that DMA rules banning calls to people registered with the TPS had been broken.
Reactiv Media, whose callers presented themselves as representatives of a ‘consumer helpline’, were warned by the DMC of their obligations as a DMA member, but failed to respond to requests to review and change their processes and continued to generate complaints about their activities.
Julia Porter, chair of the DMA board, commented:
“Putting the customer at the heart of your one-to-one communications is essential to building trust in your brand and trust in the channels you use. Reactiv Media refused our help to ensure they adhere to the law and our code of practice, which is there to protect the consumer and the reputation of the industry. It is for this reason we had to strip the company of its DMA membership.”
George Kidd, chief commissioner of the DMC, added:
“This is an unfortunate outcome. Other telemarketing companies have worked with us and turned past problems around. Those who use companies like Reactiv Media to generate leads share a responsibility. They should not be encouraging firms to bend or break rules that are there to make sure the public’s wishes are respected when it comes to telemarketing.”
Industry watchdog calls for reforms to marketing data sector
The direct marketing industry’s watchdog, the DM Commission (DMC), has called for “root and branch” reforms of the data sector to tackle practices that are playing a role in causing consumer complaints about the direct marketing industry, particularly about nuisance calls and text messages.
Investigations made by the DMC over the past 12 months into consumer complaints about unwanted direct marketing contact have identified common underlying problems regarding the source and use of data as being responsible for the majority of cases.
Some of the worst cases highlighted in the DMC’s annual report published 3rd February 2014 reveal a lack of understanding or, more seriously, a lack of concern, by some about whether they had the necessary arrangements in place to ensure their activities complied with regulations and industry best practice. In particular, the cases reveal common failures in companies to be able to cite the provenance of consumer data, whether the data has been ‘cleansed’, or if it’s been tested for accuracy and the necessary permissions.
According to George Kidd, the DMC’s chief commissioner, the industry must move quickly to address the fundamental problems in the data sector:
“The volume and nature of complaints we investigate show that we need to take a root and branch look at how companies collect, source, sell and test consumer data. Some business make fantastic creative use of data, delivering offers and services that are tuned to our personal needs and preferences. But there are times when other preferences and rights – not to be sent messages and calls which we have not agreed to or have said we do not want – are being ignored as companies pursue short-term gain, most obviously in the personal injury and Payment Protection Insurance fields. It’s not acceptable for businesses in the data business not to be able to explain where their data and the permissions on its use came from or for firms to dupe those they mail and call with mock surveys and ‘research’ that open the door to sales and marketing calls, texts and emails from total strangers.
“There is no magic solution to these problems of privacy and the misuse of data, and it will require a concerted effort in the industry to find solutions to the problems. It’s essential that this is guided by the principle of ‘putting the customer first’. Failure to do so will ensure that complaints about our industry will continue to rise and consumer confidence in direct marketing will decline.”
In September of last year, the DMC’s chief commissioner George Kidd gave evidence at the Culture, Media and Sport Select Committee’s inquiry into nuisance telephone calls and text messages, where he argued for the need for creating a co-regulatory body to tackle the issue of unwanted contact. Currently, responsibility for telemarketing and mobile marketing is spread between Ofcom and the Information Commissioner’s Office. The DMC supports these regulators but worries that neither body arguably has the resources, singular focus or the organisational build for dealing with thousands of complaints and engaging with industry to make sure these problems do not recur.
Rosaleen Hubbard, an independent commissioner of the DMC, commented in the annual report that:
“Unacceptable practices, such as nuisance calls, should not be allowed simply because the plethora of regulators and complaints bodies across the sectors results in consumer confusion. Given the multitude of regulatory frameworks within which direct marketing companies work, formal cooperation with statutory and regulatory bodies from other bodies should be further developed to enable the DMC to most effectively handle consumer complaints.”
The DMC’s annual report can be downloaded from:
All Party Parliamentary Group report backs DMC call for a co-regulatory strive to deal with nuisance calls
The APPG report on nuisance calls was published on 31 October. In it the Group takes a holistic approach, looking at the standards and controls around lead generation, the operation of the Telephone Preference Service, the role phone providers can play in supporting their users and ways in which regulators can do a better job. The call for an accreditation scheme for lead generation firms and the call on Ministers to create a co-regulatory body to support the work of ICO and others are of obvious interest to the industry.
The DMC had argued strongly for a co-regulatory arrangement that would allow industry, probably though an enhanced TPS with investigative and adjudicatory powers of the kind delivered by DMC, to take responsibility itself for dealing with non-compliance.
This was not a call to replace the ICO bot for a complementary set-up that dealt with complaints fast and on the necessary scale. Sorting the accidental, reckless and sometimes wilful behaviour and dealing with it in a proportionate way would give the public the assurance action is in hand and send a message to businesses that braking the rules is not a consequence-free option.
Few DMA members appear on the list of firms who are much complained about, but some have. The action taken in some cases to come into full compliance seems to have dramatically reduced complaint levels. The All Party Group shares our belief that effective regulation by the industry and ICO in partnership could drive complaint levels down.
The APPG report has gone to the Culture Department Minister and the DMC has already met his officials to explain our work and our thinking on how co-regulation meets the consumer’s expectation that their wishes will be respected when it comes to marketing calls and gives those who collect and process data and make service and marketing calls a climate in which this valuable work is not stigmatised. This requires a sense of urgency and creativity from our politicians and their agencies and officials.
There were 106 complaints against DMA members and non-members for the four month period of January to April 2014. Issues raised by consumers and businesses included the following areas of concern: unwanted emails, mailings and telephone calls, privacy & data protection concerns, contractual disputes and claims of unclean data.
There were 25 consumer complaints against DMA members. 2 cases were formally adjudicated upon and 23 were resolved through informal action with the member companies involved.
There were 70 consumer complaints against non-DMA members many of which referred to other trade bodies, such as the Advertising Standards Authority (ASA), Information Commissioners’ Office (ICO) and Trading Standards offices.
There were 11 business to business complaints, of which 9 were made against non-DMA member companies and 2 against members.
Those complaints which are resolved informally without the need for any formal action may or may not concern minor breaches of the DM Code of Practice. They will generally concern issues that are do not affect large numbers of consumers, where the possible harm is negligible and where the companies involved demonstrate their willingness to put things right.
However, on occasions we formally remind a company of its obligations to adhere to the Code. This may occur where there are minor breaches, where this fact is accepted by the member company, but where a formal investigation would be disproportionate and where the Secretariat thinks it is right but enough to make sure the company is fully aware of its obligations for the future. The Secretariat must be satisfied that appropriate remedial action has been taken, and that the matter is not serious enough for a formal investigation. These decisions by the Secretariat are based on criteria set by the Commission and are reported to Commissioners to ensure the right balance is being struck.
In one case which was informally resolved, a consumer who had entered a competition complained that she had been notified that she had won a retail voucher, and she had a screenshot which showed that this was seemingly the case. The wording in the initial notification was swiftly followed by the correct notification. However, the wording in the initial notification was unclear and she was in fact the recipient of a runner up prize. The company explained that they rarely offer runner up prizes and the required change to the template wording had been overlooked. They did, however, offer the consumer the winner’s prize and agreed and assured the Commission that future copy would be adjusted and that they would fully test any future changes when offering runner up prizes.
One of the formal adjudications undertaken related to a previous adjudication upheld by the Commission in October 2013 which had described concerns raised by TPS registered consumers in relation to calls about PPI. The Commission had formally reprimanded the company and reminded it of its obligations under the Code, and asked the company to review arrangements and provide a full report of actions taken to achieve compliance together with information on the handling of any future TPS complaints. Despite repeated reminders, this was not forthcoming and the Commission recommended to the DMA that their membership was terminated; this was undertaken.
A second case related to a DMA member where two complaints had been received from TPS registered consumers. The Commission considered whether the company was complying with rules regarding calls to those registered with TPS, whether there were issues in relation to customer service and whether the purpose of the calls were clear. The decisions were based on an analysis of the complaints and a considerable number of complaints to the TPS over the period of a year. Two breaches were upheld in relation to the clarity of their communication when consent is secured on-line, and the importance of ensuring that the purpose of a telephone call, as a form of lead generation, is made clear when contact is then made subsequent to the initial consent. The member worked closely with the Commission during the investigation and undertook a full review of its data journey and how this impacts the consumer. In the light of the assurances given the Commission reprimanded the member and reminded them of its obligations under the Code of Practice.
The DMC welcomed the opportunity to give evidence on 9th October at an inquiry to the All-Party Parliamentary Group on Nuisance Calls. This group was recently set up as a cross party group to increase awareness in Parliament of nuisance calls and other forms of unsolicited contact. The group also aims to promote policies to strengthen the powers of a single regulator whilst also promoting the idea of a single, simple point of contact for individuals wishing to register to protect their privacy.
DMC argued that Government should remove barriers and create incentives for effective self-regulation. We pointed to the fast responsive nature of non-statutory consumer protection bodies like the DMC, ASA and PhonepayPlus. The point was not made as a criticism of statutory bodies like Ofcom and the ICO. These are strategic national regulators with a multitude of duties and powers and responsibilities that are hard-wired in the Acts that created them. They are not suited to managing high volumes of complaints and investigations that require formal and informal outcomes.chong qi gong men We argued that the TPS and DMC or an equivalent working together could achieve a dramatic reduction in complaints through early active interventions. We argued this would address complainant frustrations and end any business sense that non-compliance with rules and regulations is a consequence-free “norm”.
The DMC welcomed the opportunity to give evidence on 3rd September at a Committee Inquiry into nuisance calls and text messages to the Culture, Media and Sport Select Committee. In our submission we said:
the Government should continue to remove barriers and build incentives to statutory bodies working together;
that action should be taken to establish a self-regulatory industry based body to deal properly and proportionately with all TPS complaints;
that thought should be given to new ways of educating the public on sharing data and giving authority for data to be passed on;
and that the Government should consider whether a more enlightened interpretation of the Communications Act Section 393 (1) would allow data to be shared with DMC.
We argued that national state regulators were often unable to deal with a market problem in a holistic way: Ofcom powers are limited to silent calls while the ICO can address a privacy PRS issue but not the nature of marketing or, perhaps, the source and adequacy of the data used. The DMA Code addresses fair marketing and contractual performance as well as issues of data sourcing and the privacy agenda. We argued strongly that Government should not just remove barriers to effective self-regulation – most obviously the way in which TPS data can be shared but that it should go further and recognise some enhanced TPS/DMC activity as the established means of dealing with public complaints about these nuisance calls. This was to complement, not replace the unique powers ICO, Ofcom and other public bodies have. We believe this sort of robust response would show complainants that they were listened to and give legitimate businesses the confidence that bad practice was no longer going unanswered.
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