Direct Marketing Commission - Enforcing Higher Industry Standards

Data & Marketing Commission | Enforcing Higher Industry Standards

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Tribute to Matti Alderson 28th October, 2020

On 16 September 2020, we said goodbye to Matti Alderson, former Chair of the Direct Marketing Authority (before she launched the Direct Marketing Commission) and former Director General of the Advertising Standards Authority (ASA), but we have not lost her legacy, described as “an unrelenting focus on making sure that all UK ads are legal, decent, honest, and truthful.”

A passionate advocate of self-regulation, Matti was a committed leader of the UK ad watchdog, which has credited her as a “driving force” in raising its profile. In 1974, Matti joined the ASA as a case officer and became Director General in 1990, spending ten years in the role, in which she particularly focussed on regulating tobacco advertising.

During her tenure, Matti also helped co-found the European Advertising Standards Alliance (EASA), the organisation that coordinates advertising work of self-regulatory bodies across Europe. She became Vice Chair in 1997, the same year Matti joined other industry figures at the European Parliament to give a powerful presentation on the portrayal of women in advertising.

When Matti left the ASA in 2000, its annual report praised her contributions.

She went on to become Managing Director of FireHorses, which providedadvice on regulatory policy and strategy to clients in the public and private sectors, and lead the Direct Marketing Authority (now the Direct Marketing Commission). She expanded the DMC’s role and influence, developed the responsibilities of its directorate, and strengthened relationships with the industry and consumers.

Charles Ping, former DMA Chairman and currently Industry Commissioner on the DMC, said:

“I was lucky enough to work with Matti as DMA Chair when she started her tenure at the DMC.

Matti arrived at the Direct Marketing Commission with a fully rounded understanding of how a regulator works, and what makes the difference between a regulatory environment that supports good business and one that doesn’t. Her view was robust, questioning and always centred in a fair view of how regulation should work.

From her time at the ASA, she instinctively understood that clarity and consistency were key, as well as the ability to clearly articulate the logic behind decisions. It was a challenge within a regulator who had a remit to regulate the code of a body, not an all-encompassing industry wide endeavour, and this made for an interesting journey over the years.

Matti’s commitment to the DMC was clear and she will be remembered by me, and those with whom she worked, as a professional committed to improving the standards of industry through better regulation.”

The obituary from The Times stated that Martha (Matti) Hallyburton Connolly was born on 20 December 1951 in Alexandria, West Dunbartonshire, the daughter of Edward, a captain in the Merchant Navy, and Helen, a nurse. She lived in London with her husband Alan Alderson, IT Director for the Bauer Media Group.

“The couple did not have children, but welcomed young people into their home every year from the former Soviet regions affected by the Chernobyl disaster. They never formally adopted but supported one Belarusian boy from the age of 11 through school and university. He later changed his name to Alex Alderson and called the couple mum and dad.”

Matti died peacefully of undisclosed causes at the age of 68.

The DMA and DMC expresses their deepest condolences to Matti’s family, and the many colleagues and friends she left behind within the ad industry and beyond.

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Vacancy – Independent Commissioner 2nd June, 2020


Independent Commissioner

Location: London

Approximately 7-10 days per annum.

Salary – £5,250: plus reasonable expenses

Closing Date end July

The Data & Marketing Commission (DMC) is the body which oversees and enforces the Data & Marketing Association (DMA)’s Code.  The Code and DMC are there to give effective protection to recipients, users and practitioners of the data driven marketing sector. It aims to ensure companies observe the highest standards of integrity and trade fairly with their customers and with each other.  This is achieved by investigating complaints and identifying trends in data driven marketing that might raise issues for consumers and the sector. The DMA are looking to appoint a new Independent Commissioner as the current incumbent’s term is due to expire at the end of 2020.  The term would be for three years, renewable once.

Historically the DMC has adjudicated against complaints about DMA members but now has an extended remit in support of the Advertising Standards Authority (ASA) with complaints by consumers in relation to data and in particular Legitimate Interest and related matters.

The Independent Commissioner will need to have experience in a senior strategic role within regulation or governance, and to have a broad understanding of regulatory principles, process and practice, and ideally have a legal background.

Duties

The Independent Commissioner will be expected to attend a minimum of four meetings a year held at the DMA’s offices, attend adjudications, and review and process case and other paperwork relating to these meetings.

The Independent Commissioner will also be expected to represent the DMC at DMA meetings and other events and meetings as required.

Qualities

  • Sound judgement and analytical skills
  • Ability to digest and make good sense of complex cases
  • Ability to understand the legal context in which an adjudication is required
  • Ability to work and debate effectively
  • To adjudicate, acting objectively

A full Job Description is available on request.

Applications to dm@dmcommission.com.

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Data & Marketing Commission announce new Chief Commissioner 7th May, 2020

Amerdeep Somal confirmed as new Chief Commissioner of the Data & Marketing Commission

07 May 2020 – Amerdeep Somal has been named as the new Chief Commissioner of the Data & Marketing Commission (DMC) – the industry body that oversees and enforces the DMA Code.

Led by the Chief Commissioner, the DMC investigates and adjudicates on reported breaches of the DMA Code by members of the Data & Marketing Association (DMA). The team of commissioners work to ensure responsible marketing and ethical marketing practices are maintained.

“I am honoured to be appointed as the new Chief Commissioner. Over the past 25 years, I have remained committed to serving organisations where independence, public interest and trust are placed front and centre of all practices,” said Amerdeep Somal, Chief Commissioner of the DMC. “Responsible marketing, transparency and ethics are key drivers for building consumer trust in the data and marketing industry – the DMC will continue to promote and enforce these values across the DMA’s membership. I am privileged to lead the DMC into the next stage of its evolution.”

Somal brings 25 years’ senior executive and non-executive experience to the position, previously operating within a series of high-profile stakeholder roles across a variety of sectors.

Previous roles include founding Commissioner and Board Member at the Independent Police Complaints Commission. She is presently Independent Assessor of the Financial Ombudsman Service, She will also continue to hold her positions as a Judge at the Ministry of Justice UK, Council Member of the General Medical Council and Board Trustee at Refuge.

Somal’s appointment comes as George Kidd comes to the end of his term, after 12 years with the DMC – first as an independent member of the DMC Board and then selected as Chief Commissioner in 2010.

“I’d like to personally thank George for his leadership, expertise and commitment to the DMC throughout his long tenure. He has been a truly remarkable ambassador to our industry,” added Stephen Maher, Chair of the Data & Marketing Association Board. “I am also delighted to welcome Amerdeep as the new Chief Commissioner. Her wealth of experience and invaluable knowledge of regulatory and judiciary practices will help drive the DMC forward into a new era.”

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DMC Annual Report – 2018/19 22nd April, 2020

“We are pleased to share our latest Annual Report of the Data & Marketing Commission. If there is a message running through the report it is one of partnership: partnership with the DMA as the author of the Code and partnership with fellow regulators of data, privacy and marketing practice. This becomes ever more important as  technology enables amazing innovation that goes beyond the understanding people have of how information about them is collected, built on and interpreted when offers are then put before them.”

Please see here for a copy of the 2018-19 Annual Report

George Kidd, Chief Commissioner

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Postra Communications Ltd (t/a leafletmarketing.co.uk) – complaints about direct marketing 20th April, 2020

The DMC investigated complaints from two businesses who had ordered a door drop delivery. Neither complainants were satisfied that the deliveries had been carried out adequately and they had both described their relationship with the member as strongly lacking in terms of engagement, responses and assurance that their leaflets had been delivered.

In the materials provided by the complainants, the DMC could not find any evidence to show that Postra Communications had been clear and transparent with its two clients.  It appeared that the clients had made multiple attempts to make contact so that they could be assured their deliveries were to be carried out as agreed and ordered. The material seen clearly indicated a reluctance or inability to share information on delivery schedules or evidence of completed deliveries. In the absence of any meaningful responses to the DMC or the clients on the matters raised it seemed appropriate to conclude Postra misled customers over performance under the contracts in question and that the deliveries were not adequately fulfilled.

The DMC did not think that Postra had complied with any of the key principles which asks members to value their customers, to act in accordance with their expectations, to be honest, fair and transparent and to act responsibly at all times. The DMC considered that Postra was in breach of the following rules set out in the DMA Code because it did not give the DMC any reason to believe that it had adhered to them.

2.1 Companies must not mislead customers; companies must be clear, open and transparent.

4.1 Members must act decently, fairly and reasonably, fulfilling their contractual obligations at all times.

4.6 Members must maintain adequate records to demonstrate compliance with the Code – and must maintain an adequate system of monitoring and audit.

4.8 Members must at all times give prompt, efficient and courteous service to customers – and must ensure they have in place adequate administrative procedures and resources to achieve this.

The lack of engagement and responses to Postra’s two clients was also mirrored in its lack of engagement with the DMC process.  The DMC did not think Postra had co-operated fully with its investigations or enquiries and had ignored frequent approaches.  The DMC found a breach of rule 4.9 in the DMA Code which states: 

Members must accept the jurisdiction of the Data & Marketing Commission (DMC) and co-operate fully with their investigations or enquiries. Members must comply with any conclusion reached by the DMC, including any decision to take disciplinary action resulting from a breach of the Code.

The DMC reached the view that Postra had shown itself unconcerned by a failure to meet contractual commitments, with failures thereafter to engage with clients or in any meaningful way with the DMC. Commissioners saw nothing to show the company was committed to complying with the DMA Code and the DMA principles.

The DMC would recommend to the DMA Board that it considers removing Postra from membership of the Association.

The DMA Board approved and the member has now been removed from membership.

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ICO consultation – Direct Marketing Code of Practice 15th January, 2020

The ICO has published its long-awaited draft of the direct marketing code of practice and invited comments from professionals across the industry.

It is a critical document for the data and marketing industry because its elevated status as a code of practice, as opposed to guidance, will give it statutory status. Meaning that it will effectively become the legal rulebook for the sector.

The code consolidates previous GDPR guidance, PECR and cookie advice, and focusses solely on direct marketing – defined by the ICO as essentially one-to-one marketing.

The code has really benefitted from the experience and knowledge that the ICO have gathered since May 2018, in terms of frequently asked questions (FAQs) by organisations and case studies.

The ICO have included relatable, straightforward subject matter and examples that clearly make use of their learnings from previous industry engagement that help clarify grey areas and common mistakes made.

Their understanding of the data and marketing industry has expanded and been brought in line with modern technological advancements and regulatory changes.

There is plenty of useful preamble and scene setting – defining terms i.e. ‘direct marketing’ and ‘service messages’ etc. It also specifically mentions the DMA Code as a point of reference for marketing best practice.

It is aimed at “anyone that processes personal data for direct marketing. purposes”.

Key takeaways and chapter summaries

The code does not address each marketing channel or type of processing separately, as was the case with its predecessor.

Instead it takes a “lifecycle approach” with the main chapters including:

Planning
Generating and collecting data
Profiling
Sending messages
There are also chapters on online advertising, selling and sharing data, and individual rights.

In addition, the code includes sections on marketing in mobile apps, in game advertising, TV advertising, and location-based marketing etc.

It also addresses the impact on different sectors, such as charity and B2B, where the rules are applied slightly differently.

In the planning chapter, there is a lot of focus on getting things right from the start by talking about data protection by design and the benefits of doing data protection impact assessments (DPIA) and conducting appropriate due diligence.

As well as how to understand the correct legal basis to use and the data controller to processor relationship.

Well established marketing practices are clearly explained and there are no huge issues or concerns in the interpretation of the law.

Although some of the finer details may come as a surprise to some i.e. Data appending is considered unfair processing, hosted email campaigns breach PECR, as do ‘Refer a Friend’ promotional campaigns.

Article 14 of GDPR says that if you obtain personal data from somewhere other than directly from the data subject, you are obliged to provide privacy information to that person within a month.

For companies that collect data from such sources as Companies House, Edited Electoral Roll or third-party data providers, this could have a major impact.

There is also a section on sharing data and switching legal basis that appears to be written because the ICO have seen this in practice and want to address it.

There are outstanding compliance questions regarding digital advertising and naturally these are not resolved by this code.

The online advertising and new technologies section has a focus on the need for transparency and the benefits of conducting a DPIA. It also summarises the relevant cookie requirements.

For those that use social media, the code makes it clear that social audiences and ‘lookalike’ audiences require consent.

Also, as a joint controller, the marketer needs to undertake due diligence on the social media platform to ensure that the data being used has valid consent.

Additionally, the code also states that in-app marketing will now need consent by the user, which could significantly impact the market for free apps in the future.

Next steps

The code will be circulated for consultation until 4 March 2020 and the final version is expected to be published later this year.

https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2020/01/ico-launches-consultation-on-draft-direct-marketing-code-of-practice/

John Mitchison
Data & Marketing Association
Director of Policy and Compliance

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The DMC sets out its position for cases where Legitimate Interest is presented as the basis for marketing activity 6th January, 2020

The Direct Marketing Commission has had complaints relating to direct mail and telephone marketing where the activity was based on a Legitimate Interest rationale.  This is permissible under ICO guidance and the DMA and others have also issued guidance. The complaints received prompted an assessment of the practices seen in terms of the DMA Code, looking in particular at the timeframes in which data might be used and what might be considered ‘fair and reasonable’; a key Code provision. The assessment did not result in any formal adjudications but we will use this set of conclusions in considering any future complaints:

  • Direct Marketing, in particular for post and telephony, will often be practiced under the grounds of Legitimate Interest as is provided for in law and supporting guidance.
  • The DMC believes the reasoning behind a wholly consistent approach to timeframes for use of data irrespective of the basis on which it is used, is sound and unexceptional.
  • In the light of some evidence seen the DMC believes there is a need to address parameters for the use of data for marketing purposes.  It believes this will be valuable to businesses wishing to use Legitimate Interests and, therefore, required to carry out a Balancing Test.
  • Whilst the DMA guidance on the minimum standards of the lifetime of consent was levered towards the grounds for Consent, the DMC intends to use the same guidance applied to the grounds for Legitimate Interest for both third party and first party processing activity.
  • This means the DMC intends to use the six and 24 month standard set out in DMA guidance for the valid use of Consent* (see below) to market to apply equally to marketing based on Legitimate Interests.
  • These time periods are for guidance and it will be up to individual users of data to consider, justify and record any applicable valid reasons for extending the time period. These could include an annualised product purchase cycle, such as in travel, insurance or utilities.
  • When considering data used under a legitimate interest purpose that is coming to the end of a valid lifetime period, the new legitimate interest assessment should treat the time since the original personal data point was captured as a key factor in the assessment.
  • Building on this move to alignment over the timeframes for marketing based on Consent or a Legitimate Interest the DMC thinks it is right that there should be broad consistency in relation to how data subjects can exercise a right to opt-out of marketing.
  • The DMC believes marketing activity based on Legitimate Interest should make clear how people can ask to stop the unwanted mailings. That explanation should be prominent and the process should be as simple to use as possible. Wherever possible the DMC would expect a request to be removed for marketing lists operated under the Legitimate Interest rationale i.e. it should go to the entity providing this data to third parties. That is to say the consumer should not have to make repeated opt-out requests to individual marketeers. Their wish should be actioned by the originator of the data.

DMA guidance on consent timescales *

The DMA advises its members to adhere to these minimum standards on the lifetime of consent:

  • For third-party data: telephone, email, SMS; the maximum time that consent can remain valid is six months after initial collection or any other positive contact
  • For third-party postal marketing: the maximum time consent can remain valid is 24 months after initial collection or any other positive contact
  • For all first-party data: telephone, email, SMS and post; the maximum time that consent can remain valid is 24 months after initial collection or any other positive contact

The timeframes run from either the initial collection or further positive contact with the customer.

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Available positions at the DMC: Independent Commissioner 21st November, 2019

The DMC is seeking a Independent Commissioner. Please see details below. Applications to dm@dmcommission.com.

Independent Commissioner

Location: London

Approximately 7-10 days pa.

Competitive Salary: plus reasonable expenses

Closing Date end 2019

The Direct Marketing Commission (DMC) is the body which oversees and enforces the Data & Marketing Association (DMA)’s Code.  The Code and DMC are there to give effective protection to recipients, users and practitioners of the data driven marketing sector. It aims to ensure companies observe the highest standards of integrity and trade fairly with their customers and with each other.  This is achieved by investigating complaints and identifying trends in data driven marketing that might raise issues for consumers and the sector. The DMA are looking to appoint a new Independent Commissioner as the current incumbent’s term is due to expire.  The term would be for three years, renewable once.

Historically the DMC has adjudicated against complaints about DMA members but will have an extended remit in support of the Advertising Standards Authority (ASA) with complaints by consumers in relation to data and in particular Legitimate Interest and related matters.

The Independent Commissioner will need to have experience in a senior strategic role within regulation or governance, and to have a broad understanding of regulatory principles, process and practice, and ideally have a legal background.

Duties

The Independent Commissioner will be expected to attend a minimum of four meetings a year held at the DMA’s offices, attend adjudications, and review and process case and other paperwork relating to these meetings.

The Independent Commissioner will also be expected to represent the DMC at DMA meetings and other events and meetings as required.

Qualities

  • Sound judgement and analytical skills
  • Ability to digest and make good sense of complex cases
  • Ability to understand the legal context in which an adjudication is required
  • Ability to work and debate effectively
  • To adjudicate, acting objectively

A full Job Description is available on request.

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Available positions at the DMC: Chief Commissioner 21st November, 2019

The DMC is seeking a Chief Commissioner. Please see details below. Applications to dm@dmcommission.com.

Chief Commissioner

Location: London

Approximately 20-25 days pa.

Competitive Salary: plus reasonable expenses

Closing Date end 2019

The Direct Marketing Commission (DMC) is the body which oversees and enforces the Data & Marketing Association (DMA)’s Code.  The Code and DMC are there to give effective protection to recipients, users and practitioners of the data driven marketing sector. It aims to ensure companies observe the highest standards of integrity and trade fairly with their customers and with each other. This is achieved by investigating complaints and identifying trends in data driven marketing that might raise issues for consumers and the sector. The DMA are looking to appoint a new Chief Commissioner as the current incumbent’s term is due to expire. A handover process of six months is envisaged.  The term would be for an initial period of three years but this is renewable.

Historically the DMC has adjudicated against complaints about DMA members but will have an extended remit in support of the Advertising Standards Authority (ASA) with complaints by consumers in relation to data and in particular Legitimate Interest and related matters.

The Chief Commissioner must be entirely independent of the data driven marketing industry and should have a genuine independence of mind and approach.  The Chief Commissioner will be expected to feedback to the DMA Board and Executive, to act as the public face of the DMC and deal with all stakeholder relations and to ensure that the affairs of the DMC, as a registered company are properly conducted.

Duties:

The Chief Commissioner will be expected to chair a minimum of four meetings a year held at the DMA’s offices, as well as attend any adjudications or other meetings as necessary. The Chief Commissioner will read papers as needed on complaint resolution and be familiar with general issues of the data driven marketing industry of relevance to self-regulation.

In addition to formal meetings of the Commission throughout the year, the Chief Commissioner will work closely with the Commission’s Secretariat on complaints to be processed through informal resolution as well as on day to day issues of relevance to the Commission.

Qualities and responsibilities required are:

  • Sound leadership skills, strategic vision and industry credibility
  • Judgement and analysis of complex material
  • Independence
  • Experience and knowledge
  • Communication and listening skills
  • Social skills
  • Media literacy
  • Awareness and experience of regulation
  • Time commitment
  • Due process and natural justice

A full Job Description is available on request.

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Fulcio Marketing has DMA membership revoked 30th May, 2019

DM Commission investigation into Fulcio Marketing identifies several breaches to the DMA Code

9 May 2019 – Fulcio Marketing, a business-to-business direct marketing company, has had their DMA membership revoked. The Direct Marketing Commission (DMC), an independent body that oversees and enforces the DMA Code to which all DMA members must comply, launched a full investigation after receiving a number of complaints.

The DMC’s investigation identified several serious breaches relating to the absence of contracts and supply agreements, unsubstantiated responses (to both complainants and the DMC), and lack of evidence to the DMC of due diligence done by Fulcio in relation to the data it sourced and supplied. Complaints also made reference to poor customer service and unprofessional conduct.

The DMC concluded that Fulcio Marketing was in breach of a number of Code provisions and was not working to the customer first principles expected of DMA members. In response to the investigation’s conclusive evidence and the DMC’s recommendation, the DMA’s Board of directors took prompt action to revoke Fulcio Marketing’s membership.

Rachel Aldighieri, MD, DMA, said: “The DMA Code is an agreement undertaken by all DMA members upon joining the association. It demands that members put the needs of their customers first and be accountable for their actions. The data and marketing industry is on a positive trajectory and it is essential to the future of our industry that organisations adhere to the high standards set out by the DMA Code. It is never an easy decision to remove a member, but the integrity of the industry and customers’ best interests will always take precedence.”

George Kidd, Chief Commissioner of the DM Commission, added: “Consumers and businesses need to know they are dealing with organisations that are transparent, honest, efficient and professional, but also responsive if things go wrong. Complaints about Fulcio Marketing listed concerns over poor customer service, an absence of clear terms & conditions to underpin customer orders, and misleading information contained on Fulcio’s marketing material. This was followed by repeated failures to deal with legitimate queries and customer complaints.”

Fulcio Marketing (Rodgerson Black) – complaints about direct marketing

 

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DMC supports ASA as advisory panel 30th May, 2019

George Kidd, Chief Commissioner:

We are pleased to confirm the DMC will be supporting the ASA in relation to complaints relating to data use and particularly any issues around the legitimate interest grounds that can be referenced under GDPR.  The DMC has years of experience in dealing with issues of data supply chains and the consents or other grounds that will give them the possibility of consulting the DMC as an advisory panel.  This strengthens the self-regulatory arrangements that complement the ICO by helping address consumer concerns quickly and ensure high compliance.

https://www.asa.org.uk/transparency/who-we-are-and-what-we-do.html

(Information on the partnership under Organisations with Whom We Work in Partnership)

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Fulcio Marketing (Rodgerson Black) – complaints about direct marketing 2nd May, 2019

This investigation centred on five complaints received against Fulcio Marketing, a Business to Business direct marketing company.  The complainants raised alleged failures to supply data in conformity with orders; misleading actions in supplying education sector data that proved to be sourced by a Freedom of Information request; claims for repeat annual payments for data that was not seen to be sold on that basis; a failure to respect previous requests not to be contacted and a failure to meet a subject access request.

The DMC had identified a number of themes that recurred.  These related to the absence of contracts and supply agreements and the absence of any documented mechanic for resolving disputes. There were unsubstantiated responses (to both complainants and the DMC), and little to no evidence to the DMC of due diligence done by Fulcio in relation to the data sourced and supplied. There was no evidence to demonstrate processes that could adequately ensure contract fulfilment. Most complaints also made reference to poor customer service and unprofessional conduct.

Online and in marketing correspondence the company made repeated and pointed reference to its DMA membership and the assurance this should give in terms of the quality of data provided. In correspondence the company made reference to supplying data to the ‘corporate level standard of the DMA’.  No such standard exists. A review found the Fulcio website also lacked essential links, including to its terms and conditions and privacy policy. This situation was unchanged during the course of the investigation.

The DMC was concerned over the failure generally of Fulcio to respond fully and in a timely manner to questions raised during the investigation. It was concerned also over the extent to which the company seemed to pursue and secure business based on the promotion of its credentials as a DMA member.  In finding Fulcio in breach of a number of Code provisions the DMC reached the conclusion that its failures could be thought to bring the DMA into disrepute.

Having reached decisions on the Code rules breached (see below) and taken a view on the seriousness or harm, the DMC proceeded to consider the most appropriate sanction or action. It examined the extent to which the trends of concern had existed over a more extensive period of time. It found issues around data accuracy, customer service and the absence of evidence of robust processes was evident in a further eleven previous complaints made against the business over the last four years. Generally these complaints had been treated under informal case procedures and resolved based on undertakings to comply.

The DMC reached the view that Fulcio Marketing was not committed to complying with the DMA Code and its principles and would recommend that the DMA remove it from membership of the Association.

1.2 Members must operate and maintain an in-house suppression file – listing the names and contact details of consumers who have indicated they do not wish to receive commercial communications via all or particular means of communication.

3.1 Members must follow all legislation relating to the processing of data, including the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003.

4.1 Members must act decently, fairly and reasonably, fulfilling their contractual obligations at all times.

4.2 Members must ensure they do nothing that could bring into disrepute the public image of one-to-one marketing or the DMA.

4.6 Members must maintain adequate records to demonstrate compliance with the code – and must maintain an adequate system of monitoring and audit.

4.8 Members must at all times give prompt, efficient and courteous service to customers – and must ensure they have in place adequate administrative procedures and resources to achieve this.

4.9 Members must accept the jurisdiction of the Direct Marketing Commission (DMC) and co-operate fully with their investigations or enquiries.

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Complaints about data and privacy still dominate 2018 14th February, 2019

Data, privacy and quality of data continue to lead consumer complaints,
according to the latest DM Commission report

Issues around data, privacy and its accuracy are the biggest concerns for consumers in 2018, according to the DM Commission’s Annual Report. In a year that saw the introduction of the General Data Protection Regulations (GDPR) coming into force, the DM Commission reported a marked reduction in complaints to the Commission against businesses in the direct marketing sector – from over 200 in 2017 to just over 100 this year.

The Commission investigated 27 cases involving members of the DMA in 2018. Of these, 83% related to data, privacy and quality (up from 69% last year), with the remaining complaints split between customer service (14%) and contractual (3%) issues. The Commission referred 76 complaints against non-member organisations to other relevant statutory or self-regulatory bodies, but also reached out to the businesses involved to inform them of the complaints, remind them of their legal and regulatory duties and ask them to address the consumers’ concerns.

Over the course of the year, the Commission Board decided it was necessary to conduct formal investigations into two businesses, finding one in breach of the DMA Code. Both of these cases were looked at against  the DMA Code and the guidance in place at the time of the incidents reported, so prior to the onset of GDPR in May.

George Kidd, Chief Commissioner of the DM Commission, said: “This has been quite a year for anyone and everyone involved in the marketing data lifecycle. The GDPR has put direct marketing in the spotlight as never before. The question now is ‘Has this made a difference?’ My sense is for most yes and for some no. Today most businesses understand the importance of their customer relationships and are conscious of the impact on their brands of not abiding by the new laws.”

Kidd continues: “Sadly, there is still a dreadful minority whose whole purpose in life seems to be to ‘spam and scam’, who misrepresent themselves, mislead those they target and have no regard for the law, except perhaps if the changes really do expose them to tougher action. The GDPR should give state regulators the power to focus on those organisations that spam and scam by intent.”

 

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PDV Ltd – complaints about direct marketing 25th July, 2018

This investigation related to a complaint regarding a consumer who, despite being registered on the Telephone Preference Service, was contacted by a legal services company seeking to sell its services.  This call was made after the person called had been identified as someone who had consented to future marketing during a lifestyle survey call made by an offshore call centre which was contacting consumers for lead generation purposes. The call centre was acting on behalf of various clients. In this case the legal services lead generation was commissioned by PDV (part of Data Locator Group), a broker of data and marketing leads.

In the survey call there was a specific question related to legal services. The call script did not then go on to ask the person called if she or he wanted a follow up call from the legal services business who sponsored the call and question. The offshore suppliers’ call script listed the legal services client name in a recorded message at the end of the call along with other entities who had sponsored the survey and the questions in it. It did so in a way that did not make any link between a question on legal services and which would have allowed the consumer to make an informed choice as to whether or not a future call was welcome.  The Commission took the view that recordings at the end of a call give listeners no assured or straightforward mechanism for deciding who the call recipient does or does not want to hear from.

The Commission did not think the process described, by virtue of the structure of the call, the speed with which ways of opting out of marketing as a result of the survey call or the actual processes for opting-out, could be thought to have secured specific and informed consent for the legal company to over-ride the TPS registration in place and call the consumer.  In conclusion, the Commission did not think that PDV, as the broker between the off-shore supplier and the end client, had satisfied itself adequately as to the mechanics for securing informed consent.

For these reasons we upheld breaches of:

3.11 When buying or renting personal data, members must satisfy themselves that the data has been properly sourced, permissioned and cleaned.

4.3 Members must accept that in the context of this Code they are normally responsible for any action (including the content of commercial communications) taken on their behalf by their staff, sales agents, agencies, one-to-one marketing suppliers and others.

The Commission also noted that the off-shore supplier used a number of different trading names when making survey calls to generate marketing leads.  It was concerned that there was no evident  link between trading names introduced at the start of the call in question and trading names that were used previously or subsequently during other ‘surveys’ .  This could only serve to confuse a consumer and might invalidate any consents given to follow-up calls.   The Commission has encouraged PDV to seek advice on this point.

The Commission fully recognises that the industry has now moved into a new era under GDPR rules which require a higher standard and the Commission was told that PDV were embracing this and making necessary amendments to its processes, including the provision of named opt-ins at the point of sponsored questions rather than relying on a list in an end of call recording.

The Commission strongly reminded PDV of its obligations under the DMA Code.

The case is subject to any appeal.

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New GDPR rules set the tone for consumers 29th May, 2018

The Commission welcomes new GDPR rules which came into force on 25th May, and which put the consumer firmly in the driving seat.  With the new law in place, individuals have more control over how their data is used, shared and stored and businesses must be accountable and transparent in the way they handle data.   The principles of the DMA’s Industry Code to put your customer first, respect privacy, to be fair and transparent, exercise diligence and to take responsibility are very much reflected in the new legislation. It will be business as usual for the Commission’s investigations, which are set against those principles in the Code, with the advantage that they are now supported by a higher legal standard.  Further details on GDPR can be found on the DMA website at www.dma.org.uk/gdpr.

George Kidd, Chief Commissioner said:

“Its eye-opening how many different organisations are contacting us about the continued use of personal data: eye-opening in terms of how often and, perhaps, how casually we share data, consciously or otherwise.

I hope this new awareness – and who’d ever have thought data privacy would be a hot topic of conversation – is great news. It makes businesses, charities and data professionals think hard and creatively about how to explain the consents they seek to take and use data and about how this might benefit us as we get these requests. 

GDPR should not be about bringing the shutters down on use of data but opening the blinds to let us see when and how this can happen and how it can benefit us as customers, and citizens.”

 

 

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ICO warns data broking industry after issuing £80,000 fine to data supplier 6th November, 2017

Verso Group (UK) Limited failed to comply with data protection law because it was not clear with people about what it was doing with their personal information.

This is the first fine to be issued following a wider investigation by the ICO into the data broking industry.

The Hertfordshire-based business generated leads by contacting people in the UK from two overseas call centres. Personal data was gathered from what telephone operators described as surveys, but were in fact lead generation calls. Other practices included buying in data from various firms to be packaged up to sell on to companies for use in direct marketing without the correct consent required.

The firm’s practices spanned a number of years and as a result, anyone affected could not have known who would be obtaining and using their personal data for marketing.

Verso should have ensured that the people whose personal data it was dealing in were given specific information about the companies who would potentially be marketing services to them.

Along with the requirement to process data fairly, Verso should have had people’s consent to use their information in this way. The company could not provide proof of this consent. If businesses are buying data they must be sure of the source of the information and obtain the correct consent.

George Kidd, DMC Chief Commissioner said:

“Properly done, sourcing leads and securing consent to marketing is absolutely core to businesses, charity fundraisers and others. When it’s not not done properly and when the consents are uncertain at best or even non existent the result is intrusion, frustration and even fear on the part of those getting calls and messages.

Good businesses understand that. This understanding is underpinned by self-regulation as exists with the DMA Code. When things may not be as they should be self-regulation can play a valuable role in ensuring improvements are made that up the standards and reduce the demands on statutory regulators such as the ICO. While Verso was in DMA membership we tried, through an investigation and adjudication to get the company to review and change their practices. Mostly that approach works: sometimes, as with Verso, it  does not. In these situation we are clear on the importance of the Direct Marketing Commission giving the ICO information and support to help them reach the appropriate decision.  

 

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Data Locator Group – complaints about direct marketing 28th February, 2017

This investigation related to complaints received from two individuals whose TPS registered numbers were contacted by DLG to undertake a survey for lead generation purposes.  DLG had obtained the details from two off-shore call centres who were themselves carrying out lead generation surveys for a number of clients including DLG.

These call centres were, in turn, using data provided by other third parties. DLG could not provide the Commission with evidence that they had satisfied themselves that their call-centre partners had the consents necessary to be calling people registered with the TPS.

In this case these seemingly improper calls did result in some of the people called taking part in surveys conducted by the call-centres and giving some form of consent to marketing or survey/lead-generation calls from DLG and others. DLG took the view this last act gave them clearance to call TPS registrants on the basis they had a consent to do so. Calling TPS registrants when consent has not been given is wrong.

In the cases investigated, the offshore suppliers’ call scripts listed sponsor names at the end of the calls – in one case the list was within a pre-recorded message.  Recordings at the end of the call gave listeners no assured or straightforward mechanism for deciding who the call-recipient did or did not want to hear from. The Commission rejected the idea that a willingness to take lifestyle survey calls ending with a recording of all those sponsoring the survey in search of prospective business could, in effect, be taken as consent to any and all  sponsors.  On this interpretation, we thought that the consent mechanism for DLG to make subsequent calls to these TPS registrants was inadequate.

The Commission thought there was a greater risk that UK rules may not be followed when using off-shore suppliers and that this greater risk should be a consideration when purchasing data from different sources.  The Commission did not think the member had satisfied itself adequately as to the source of the data and the mechanics for securing consent and that if they could not satisfy themselves, the Commission thought they should have applied a TPS filter on the basis that they could not be confident that this had been done by others.

The Commission was also concerned that the suppliers’ consent mechanisms were vague, with one call centre using different brand names to call the complainant and the supplier scripts in both cases listing DLG as one of the sponsors of the survey call under one trading name (surveys.co.uk) but DLG subsequently calling under another trading name (Consumer Lifestyles). The Commission thought this was confusing to consumers.  The Commission found breaches of the following provisions of the DMA Code:

3.11 When buying or renting personal data, members must satisfy themselves that the data has been properly sourced, permissioned and cleaned.

4.3 Members must accept that in the context of this Code they are normally responsible for any action (including the content of commercial communications) taken on their behalf by their staff, sales agents, agencies, one-to-one marketing suppliers and others.

The Commission did take into account, however, that DLG had acknowledged the need to make further changes and had moved in January 2017 to arrangements under which it would  carry out TPS screening against any lists supplied by call centres where a DLG brand is named in sponsor lists in end of call recordings.

The Commission strongly reminded DLG of its obligations under the DMA Code and have shared its findings with the DMA to highlight the issues of accountability and control of sub-contractors by members and the issue of ‘end of call’ consents.

 

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In harmony with the ICO 31st January, 2017

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

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BT announces new service to prevent spam calls 25th January, 2017

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.

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DMC Annual Report 2015/16: Concerns over consent dominate complaints in 2016 4th January, 2017

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

 

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How long does customer consent last? 24th October, 2016

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 councils@dma.or.uk or on 020 7291 3300.

By Skip Fidura, Chair of the DMA’s Responsible marketing committee

Tell us what you think

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DMA extends compliance process for businesses that buy or sell data 24th October, 2016

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.

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Hollywood Marketing (Monster Travel/SellMyTimeshare.tv) 3rd October, 2016

Hollywood Marketing has resigned its DMA membership by agreement between it and the DMA following an incomplete adjudication process. The DMA will be making no further comment publicly or privately on the case.

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Verso – Complaint about direct marketing 24th August, 2016

Please note that the Commission investigates complaints against DMA members involving breaches of the DMA Code. Any adjudication is based solely on compliance with the DMA Code and it does not, and cannot make comment on the lawfulness or not of the members’ actions.

This case centred on the supply of data of over 2 million consumer records to be used for an SMS marketing campaign.  The texts sent promoted an opportunity to place bets with a gambling company.  The complainant had received two unwanted text messages to this effect over the Xmas period.  The complainant was certain that he had not consented to receive the messages and had uncovered a lengthy supply chain over which his data was passed and which involved three DMA members. The messages the complainant received were mis-matched to an incorrect Christian name.

In considering cases where there is some form of value chain and where the member is using suppliers for a service to provide opted-in data to an explicit channel and sector, the Commission looks for assurance that sufficient due diligence is undertaken to show that supplier arrangements are compliant.  Given the high volume of records required for this order, the ‘sensitive’ nature of gambling and the requirements for the provision of clearly opted-in data, each member in the supply chain had a responsibility to undertake adequate controls and checks.

Verso Group had sourced the data from Evolution DM and sent it on to Digitonic which was to broadcast the data for the text campaign.

The Commission did not believe that Verso managed these contracts responsibly. During the time of the data order, Verso had come to the conclusion that it was not equipped to meet the data requirements from its own telephone survey and chose to out-source the data procurement. Verso could not produce any evidence to satisfy the Commission that it communicated the changed circumstance to its client, Digitonic.  It is not evident that Verso undertook the due diligence necessary to satisfy itself that its data supplier had the necessary consents for the data provided. The Commission also saw evidence of operational failings in the preparation and supply of the data, specifically a failure to correctly align names to the mobile numbers used in the campaign.

The Commission was not satisfied by the responses from Verso to its enquiries and the breaches raised and they saw a lack of willingness to accept corporate responsibility for events.

The Commission welcomed the assurance that Verso are to undertake remedial actions in terms of training staff to ensure there is a member of staff available to make these checks in future, but believed there was a need to test the adequacy of arrangements

Outcome

The Commission found Verso to be in breach of Rules 3.11, 4.1 and 4.3 below.

The Commission formally strongly reminded Verso of its obligations under the DMA Code.

The Commission has shared its findings with the DMA and asked it to use planned new audit arrangements with member companies to satisfy itself that Verso have the processes and sampling and other checks necessary to act as a data broker and lead generation provider. 

3.11 When buying or renting personal data, members must satisfy themselves that the data has been properly sourced, permissioned and cleaned. 

4.1 Members must act decently, fairly and reasonably, fulfilling their contractual obligations at all times. 

4.3 Members must accept that in the context of this Code they are normally responsible for any action (including the content of commercial communications) taken on their behalf by their staff, sales agents, agencies, one-to-one marketing suppliers and others.

Following adjudication, Verso lodged an Appeal. The Independent Appeals Commissioner upheld the DMC’s decisions.

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