Identify direct marketing

28 March 2023 - A further reading box has been added to the “identify direct marketing” section to highlight new guidance on direct marketing and regulatory communications.

At a glance

Not everything you want to do will be considered direct marketing. But it is important to check if it is, so you can comply with all the relevant rules.

Direct marketing includes promoting your aims and ideals, as well as advertising your products or services. This means it includes fundraising and campaigning.

Direct marketing is not just about sending messages. It can include activities that lead up to, enable or support you sending direct marketing (such as targeting and profiling).

In more detail

• What is direct marketing?
• What are direct marketing purposes?
• What are service messages?
• How can we decide if what we want to do is direct marketing?

What is direct marketing?

The definition of direct marketing is taken from the DPA 2018 and is also used in PECR. The DPA 2018 says direct marketing means:

“the communication (by whatever means) of advertising or marketing material which is directed to particular individuals”

This definition is sector neutral which means any type of organisation can engage in direct marketing. However, if a public authority can demonstrate that the promotional message it is sending is necessary for its task or function, then this doesn’t count as direct marketing (see the further reading box).

The definition breaks down as follows:

• Advertising or marketing material

This is interpreted widely and covers any advertising, promotions or marketing material. It includes:

• commercial marketing of products and services; and
• promotion of aims and ideals such as fundraising, political campaigning or corporate initiatives that promote community or charitable work.

Contacting people to conduct genuine market research is not direct marketing. However, if your market research messages include promotional material, or if the research is ultimately being carried out for you or others to send direct marketing to the people involved, then this is direct marketing. This is sometimes referred to as ‘sugging’ (selling under the guise of research).

• Communication (by whatever means)

Any type of communication that you might decide to use for your direct marketing. For example:

• emails or text messages;
• phone calls;
• post;
• online behavioural advertising; or
• social media marketing.

It can also cover any type of non-traditional or emerging types of communication or approach.

• Directed to particular individuals

This means that the marketing material must be “directed to” a particular person or categories of people. For example:

• personally addressed post;
• calls to a particular telephone number;
• emails sent to a particular email account;
• online advertising that is targeted to a particular user (eg based on browsing history, purchase history or login information); and
• advertising on social media that is targeted to a particular person (eg by using direct messaging or tagging a particular person into an advertising post).

Marketing is not “directed to” if it is indiscriminate blanket marketing. For example:

• leaflets delivered to every house in an area;
• magazine inserts;
• online adverts shown to everyone who views a website; or
• an advertising post on social media that is broadcast to all followers of the account or all users of the platform.

However, simply removing someone’s name from the marketing material doesn’t stop it from still being directed to that person.

Further Reading

Relevant provisions in PECR – see Regulation 2(2)

Relevant provisions in DPA 2018 – see Section 122(5) (definition), Schedule 19 paragraph 430 and paragraph 432(6)

Further reading

What are direct marketing purposes?

Direct marketing is wider than just sending messages to people. It includes all the activities you do with people’s information that lead up to, directly enable or support sending your direct marketing messages. The focus is on why you are doing something rather than the activity itself.

• building a profile on someone with the intention of using this to target them with advertising;
• generating leads for advertising purposes (eg cold calling people);
• data cleansing, matching or screening for direct marketing;
• list brokering;
• sharing data with third parties for them to use for their own direct marketing; and
• contacting people to ask them for consent to direct marketing.

Example

A hotel sends an email to its previous guests asking them if they would like to consent to receiving its special offers and discounts. Whilst this email doesn’t contain any of these discounts or offers, the hotel is still sending it for direct marketing purposes.

What are service messages?

Data protection law and PECR don’t stop you from telling your customers important information that they need to know as part of their relationship with you.

This type of communication is often referred to as a ‘service message’. It covers messages that aren’t promotional but are for administrative or customer services purposes, such as messages to:

• remind people how to contact you in case of a problem;
• check their contact details are correct;
• confirm or remind them about appointments; or
• update them on your terms or conditions.

Example

A gym makes a telephone call to a customer. The purpose of the call is simply to advise the customer that their monthly membership payment hasn’t worked. Therefore, the call doesn’t count as direct marketing.

If your service message has elements that are direct marketing, even if that is not the main purpose of your message, then it will count as direct marketing. However, if your service message contains general branding or logos, this doesn’t count as direct marketing.

Example

During the call to a customer about the problems with their payment, the gym also outlines its personal training services. Although the main purpose of the call is for administration, because the gym is also using the call to promote its services, it now falls within the definition of direct marketing.

How can we decide if what we want to do is direct marketing?

In most cases, it will be clear to you that what you want to do is direct marketing. However, if you are unsure you should:

• think about why you want to use the information (eg are you using it so that you can build a profile on someone to send them marketing or for anything else that supports you sending direct marketing?);
• think about why you want to communicate with people (eg are you trying to influence their behaviour?); and
• look at whether the content is promotional (eg does it advertise products or services or promote you or your interests?).

If you want to send a message that actively promotes or encourages people to make use of a particular service, special offer, or upgrade, then it is likely to be direct marketing.

If you have a relationship with a person, the phrasing, tone and context are likely to be a key factor in whether the message you want to send is direct marketing. For example, if a message has a neutral tone and simply gives information that they need to know as part of their relationship with you this is more likely to be a service message.

Example

A mobile phone company needs to tell their customer that they are reaching their monthly data limit. The company sends a text message to the customer about this, advising what the charges will be if the customer exceeds the limit and signposting to further information:

“You are approaching your monthly data limit. Any data that you use over your allowance will be charged at XX. For more information including your data bundle options go to company.com.”

Because this message is about their account and purely informative and neutral in tone, it is likely to be a service message.

However, if the company used the message to encourage the customer to take up a special offer to buy more data, then this would be direct marketing. For example:

“You are approaching your monthly data limit. Any data that you use over your allowance will be charged at XX. But don’t worry, as we have a special data offer just for you. For more information and to see your exclusive offer go to company.com.”

Other examples of when a message may not be direct marketing include:

• factual information reminding customers of a benefit on their account but not encouraging them to use the benefit (eg reminding customers that their bank account includes free travel insurance);
• advising customers in a factual way of the options available to them at the end of their contract without encouraging or promoting one option over another; and
• automatic renewal notices that are worded neutrally and don’t encourage customers to renew.

However, simply using a neutral tone doesn’t necessarily avoid messages being direct marketing. This is because the context in which you send the message is also important. For example, a message sent to a person by a supermarket which says “Your local supermarket stocks leading brands” is clearly still promotional, despite the neutral tone. In this context, the purpose of the message is to promote the supermarket.

Further reading

If you operate in a regulated private sector, see our direct marketing and regulatory communications guidance for help to decide when a regulatory communication message might count as direct marketing.

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