ASA decision: opt-out means what it says!

When advising clients, on the relevant direct marketing "opt-in" and "opt-out" obligations (under the Privacy and Electronic Communications (EC Directive) Regulations 2003), don’t forget the ASA’s "CAP Code", which is a self-regulatory code governing non-broadcast marketing communications. A recent ASA decision against ING shows that, while not having the legal force of the Regulations, breach of the Code can lead to high profile embarrassment for an organisation and can upset your customers. ASA decisions also give useful guidance on direct marketing practice.  

ING sent out a letter and newsletter to customers who had specifically opted out of receiving marketing communications. The letter invited the customers to call the customer services helpline if they wished to change their mind and opt back into receiving these communications. A number of ING customers complained to the ASA about the letter.

The ASA upheld the complaint and found ING were in breach of the Code,

Data security – the law is closing in!

The relatively relaxed regime under the Data Protection Act is being augmented by more and more legislation setting out prescribed protections for data security. As well as the new ss. 77 and 144 of the Criminal Justice and Immigration Act 2008, which means that sanctions for criminal offences under the DPA will now include potentially significant fines and jail sentences, there have been other interesting developments recently showing that the law-makers in the UK and EU are seeing this as an increasingly important issue.

Did you know that the new Companies Act 2006 places a direct obligation on company directors to ensure the confidentiality of data (not just personal data, but all forms of commercially sensitive information)? This is on top of the obligations to protect audit-related data under corporate governance legislation.

Also, calls are increasing for the EU’s amendments to the E-Privacy Directive to be expanded to include a data security breach notification for all organisations – we’ll have to wait until the summer to see if this is the case.

You have been warned!