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
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
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.”
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.
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.
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.”
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 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.”
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.
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.
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 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 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
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.
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.
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.
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.
As of 1st May this year, Green Button became a separate legal entity to Evolution Direct Marketing Ltd – the Commission’s adjudication was based on its status and relationship with Evolution at the time of this investigation.
Evolution (trading as Green Button) sought to source data in order to send this over to Verso which in turn sent the data to Digitonic, the text broadcaster. The supplier was known to Evolution (Green Button), but only through a partnership delivering an unrelated campaign. In the absence of any documented materials, the Commission could not see how Evolution (Green Button) assured itself that the data was owned and controlled by the supplier as claimed and felt able to forward it to Verso. As part of the investigation Evolution (Green Button) confirmed the data the sourced and supplied to Verso was not generated and owned by its supplier, and that the original provenance of the data could not be ascertained.
The Commission concluded that there was insufficient due diligence undertaken, and did not think that Evolution’s (Green Button) awareness of the issues and risk in procuring this type of data was reflected in its arrangements.
The Commission accepted that Evolution (Green Button) had undertaken remedial actions and produced revised due diligence materials and that there was no intent to supply data of this nature again. The Commission also noted the declaration that in future data would not be accepted from amalgamated sources and record samples would be obtained to include screen shots of opt-ins and corresponding dates.
Outcome
The Commission found Evolution to be in breach of Rules 3.11 and 4.1 below.
The Commission strongly reminded Evolution of their obligations under 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.
4.1 Members must act decently, fairly and reasonably, fulfilling their contractual obligations at all times.
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.
Digitonic were contracted by the gambling company to undertake the text marketing campaign on its behalf, and had sourced data from Verso Group. Digitonic had received paperwork indicating that the data would be supplied from Verso’s own telephone survey, which was opted-in to texts from the gambling sector. It later transpired that Verso did not provide data from its own telephone survey, and the data supplied was incorrectly formatted with the result that some texts were sent mis-matching mobile numbers with incorrect Christian names.
The Commission concluded that Digitonic had processes in place of a good standard, that were transparent and that demonstrated an intent to comply.
Outcome
The Commission did not find Digitonic in breach of the DMA Code, but asked Digitonic to look at whether sampling or other tests should be used to underpin their documented processes to validate the data they procure. The Commission was reassured that this was an area to which consideration is being given.
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.
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!
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”.
Please see here for links to our two adjudication summaries – B2C Data and Data Bubble.
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.
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 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.”
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
Financial Scams
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:
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.
Responsible marketing
DMA Code – Marketers should use the DMA Code and how-to guides when creating their marketing campaigns, especially when targeting the over-55s. The DMA Code contains five aspirational principles:
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.
