Out-Law News 2 min. read

Marketers' code reformed in line with privacy laws


The advertising industry's CAP Code has been updated to reflect new privacy laws which came into force in December 2003, and to take into account guidance from the Office of the Information Commissioner.

The most important changes to the Code will affect:

  • the information which must be contained in marketing communications – in particular the names and addresses which must be provided in the communication; and
  • the circumstances in which explicit consent of consumers is required before unsolicited marketing communications can be sent.

The changes affect the eleventh version of the CAP Code, released in March 2003, and take into account changes in the law brought about by the UK's Privacy and Electronic Communications Regulations of 2003.

These Regulations came into effect in December 2003. They regulate, among other things, the way in which businesses can send unsolicited communications by e-mail or SMS text message.

The changes to the Code help clear up some potential confusion in the current version, which was written while the Regulations were still in draft form. In preparing the amendments, CAP consulted the Office of the Information Commissioner, the body responsible for enforcing data protection legislation in the UK, taking guidance on the interpretation of the Regulations.

Identifying marketers

Rule 22 of the Code deals with recognising marketing communications and identifying marketers. It requires that distance-selling marketing communications (which will include communications by post, e-mail, voice telephony and SMS text messages) contain the full name of the marketers, and the suppliers if the parties are different.

A full 'valid' address will also be required. This could be a geographical address or e-mail address of the marketers, depending on the method of marketing, provided that it permits the recipients to send requests to opt-out of further marketing.

CAP has suggested that PO Boxes may no longer be appropriate for geographical addresses in certain cases. In the case of fax and automated telephone marketing, a freephone telephone number may be used.

Unsolicited marketing

Rule 43 of the code deals with unsolicited marketing communication. The amendments to this Rule clear up the distinction between consumer and business marketing.

Unsolicited communications cannot be sent to a work e-mail address without explicit consent, unless the marketer is offering similar products which have been previously supplied, or the product is a business product relevant to the recipient's work. This means that marketing of business products may be sent to an individual's work account.

The Committee of Advertising Practice (CAP) is responsible for preparing the British Code of Advertising, Sales Practice and Direct Marketing: the basis on which the content of non-broadcast marketing communications in the UK are regulated. While the Code lacks the force of legislation, it is administrated by the Advertising Standards Authority, and should be followed by all businesses. Those falling foul of the Code may be subject to financial penalties.

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