Culture, Media and Spam

Most of the news and comment I heard about the Queen’s Speech suggested that it was a hole in the air, with the Government wanting to avoid doing anything of any consequence before the resolution of the EU vote in June. It was a surprise, therefore, to see provisions in the proposed Digital Economy Bill that will change the face of direct marketing.

At the moment, the rules for direct marketing are a mixture of Data Protection (for postal marketing) and PECR (for email & texts, live calls, automated calls and fax). PECR breaks down into subsets, with some forms of marketing requiring consent (email & text, automated calls, fax) and some done without consent and with opt-out (live calls, with the ability to opt-out of all calls via the Telephone Preference Service.

But consider this line from the full version of the Queen’s Speech:

Protection for consumers from spam email and nuisance calls by ensuring consent is obtained for direct marketing, and that the Information Commissioner is empowered to impose fines on those who break the rules.

My first reaction to this was that the Department for Culture, Media and Sport were incompetent: PECR already requires consent for email, and the Information Commissioner already has the power to impose fines for breaches of consent. Whatever else, this is still true, and DCMS should explain why they are announcing things that have been in place since 2003 (consent for email) and 2011 (fines) respectively. Nevertheless, it’s impossible to interpret this sentence as meaning anything other than a change in the rules for live calls. It’s not earth-shattering: it’s only lawful to cold-call people who aren’t on TPS and who haven’t directly opted out, which is probably a minority of the overall population. But nevertheless, the proposal as written abolishes the need for the Telephone Preference Service and inverts current practice.

It certainly has the merit of neatness: PECR would make more sense if all electronic direct marketing had to be opt-in. However, it will have consequences far and wide. There are plenty of lead generators and telemarketing companies who still make cold-calls, and they would be dead in the water. I would shed no tears over this (I think the lead generation and list broking industry is fundamentally unlawful, and most of the folk in the call centres would just end up in hopefully less rancid call centres). However, killing off the telemarketing industry is bold.

It will also create an even more stark contrast with the Fundraising Preference Service, which in its current form allows someone to stop all contact with all charities. It’s not even clear whether a person will technically be able to opt-in to individual charities that they do want to hear from if they’re on the FPS. It would be moronic if this situation wasn’t clarified, but people who do moronic things tend to be good at maintaining their standards. Given that the Digital Economy Bill apparently puts all* electronic marketing on an opt-in basis, charities might legitimately argue that the FPS is unnecessary, and they would have a point.

There are other issues. If all email marketing has to be done on the basis on consent, this also presumably kills off the ‘soft opt-in’. The ‘soft opt-in’ allows a company to send email marketing on an opt-out basis, as long as the email address in question has been obtained in the course of a sale, and as long as the products being marketed are their own, and are similar to the one that was originally purchased. Requiring all email marketing to be done on the basis of consent would remove this option (NB: if you think the absence of an opt-out can be interpreted as consent, you are a moron).

Finally, the proposal doesn’t mention texts, hence my * above. Texts are as much of a nuisance for people as live calls or emails, and have been the subject of routine enforcement action by the Information Commissioner since 2011. PECR treats email and text as the same, so it’s entirely possible that the Government are treating them so. It’s equally possible that this is a back of a fag packet proposal to bulk out a weak bill in a thin speech. One indicator that this might be the case is that the Information Commissioner, explicitly mentioned in the proposal, has not reacted to it in any way. There is no press release, and not a single tweet, despite a run of tweets this week about nuisance calls and other PECR related action. One could be forgiven for thinking that they didn’t know about it (I will be doing an FOI to find out).

You might think that spinning 833 words out of a single sentence is overkill, but on the face of it, the proposed change will have a considerable impact. Like me, I hope you will be watching the progress of the Digital Economy Bill with interest.

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