Rules for electronic and direct marketing

What is direct marketing?

Direct marketing involves a person being targeted as an individual, and the marketer attempting to promote a product or service, or attempting to get the person to request additional information about a product or service. Unaddressed mail received at your home is not covered by data protection legislation as no personal data is used. It also does not include market surveys seeking your views on say political matters or radio listenership preferences.

General rule

The general rule for direct marketing is that it requires the affirmative consent of the recipient (such as by specifically opting-in) under Regulation 13 of the ePrivacy Regulations (SI 336/2011). Even where a direct marketer has the consent of a data subject, that consent may be withdrawn by the data subject, and in all cases of direct marketing, under Article 21 GDPR the data subject has the right to object at any time to the use of their personal data for such marketing, which includes profiling related to such direct marketing. This right to object must be explicitly brought to the attention of the data subject and presented clearly and separately from any other information.

Further, in some cases retailers and service providers may be able to rely on Regulation 13(11) of the ePrivacy Regulations, which allows for direct marketing in the context of the sale of a product or a service, where certain conditions are met, but does not specifically require affirmative consent. The conditions retailers and service providers much meet to avail of Regulation 13(11) are the following:

  1. The product or service being marketed is your own product or service;
  2. The product or service you are marketing is of a kind similar to that which you sold to the customer at the time you obtained their contact details;
  3. At the time you collected the details, you gave the customer the opportunity to object, in an easy manner and without charge, to their use for marketing purposes;
  4. Each time you send a marketing message, you give the customer the right to object to receipt of further messages; and
  5. The sale of the product or service occurred not more than twelve months prior to the sending of the electronic marketing communication or, where applicable, the contact details were used for the sending of an electronic marketing communication in that twelve-month period.

Thus, in such cases customers should be provided at the point of collection of their contact details, with the means to ‘opt-out’ from receiving marketing material. This can be achieved by having an ‘opt-out’ tick box prominently displayed beside the field for customer’s contact details. This marketing ‘opt-out’ box should be drawn to the attention of the customer by its prominence and location on the data collection form and it should stand out separately to terms and conditions which may apply to the purchase of the product or service. The customer should also be given an easy opportunity to opt-out of further marketing communications each time they are contacted for marketing purposes.
 

What is an unsolicited communication?

Unsolicited communication is essentially something that was not sought or requested. If you have an ongoing, or recent, relationship with a person, then contact from that person might not be deemed to be unsolicited, as some form of consent may be present. In addition, where you have volunteered contact details in the course of completing lifestyle surveys or entering promotions, such details may have consent attached to their future use and subsequent contact may not be deemed to be unsolicited depending on what you knew when you provided them.

Can my mobile phone be targeted for marketing phone calls?

Under the ePrivacy Regulations (SI 336 of 2011) marketing calls to mobile phones are prohibited unless

(i) the caller has been notified by the subscriber or user that he or she consents to the receipt of such calls on his or her mobile telephone, or

(ii) the subscriber or user has consented generally to receiving marketing calls and that such consent to receive marketing calls is recorded in the NDD in respect of his or her mobile telephone number.

In relation to email and mobile phone text based direct marketing, it is an offence to send such communications to you without your clear consent in advance. In the case of businesses, messages can be sent until such time as the sender is asked to stop and any subsequent messages from that sender would then be an offence.

Are there ways of stopping unsolicited marketing contacts?

Unsolicited direct marketing mail can be stopped by sending back an opt-out from such contacts to the sender. A means of doing this should have been provided with the communication received. Your preference must be respected. If you have concerns as to where your information was sourced, you should seek an explanation from the company concerned. Where you are unhappy with the outcome please contact this office for further advice.