Direct Marketing Commission - Enforcing Higher Industry Standards

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.

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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”.

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The DMC welcomed the opportunity to give evidence on 3^rd 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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