UK: Direct Marketing And The Rules On Privacy

Last Updated: 6 April 2017
Article by David Gourlay

Last week saw two UK regulatory bodies crack down on organisations for breaching the rules on direct marketing:

  1. The Advertising Standards Authority (ASA) ruled that Lands' End Europe Ltd (Lands' End) breached the rules on direct marketing in the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code).
  2. Additionally, the Information Commissioner's Office (ICO) fined Flybe £70,000 and Honda £13,000 for sending unsolicited direct marketing communications.

ASA – what did they say?

The complainant in this matter challenged an advertisement sent to them by Lands' End, a clothing company, on 10 October 2016 claiming it was unsolicited.

Lands' End responded to the complaint advising that the email was sent via an email targeting agency. This agency had obtained consent from the complainant to receive third party email communications through one of their partners. The complainant had opted in to receive these communications through an opt-in box.

To obtain consent, the partner used an un-ticked tick box next to a statement which read "You understand and agree that you are establishing a business relationship with our network of affiliate partners, and you may be contacted by one of our partners by telephone or mobile using automated dialling or electronic mail".

Despite the use of an opt-in tick box, the ASA ruled against Lands' End and found that explicit consent had not been given. The ASA noted:

  • The statement next to the tick box was not sufficiently detailed. The ASA found that consumers would understand this statement to mean that they were consenting to receive emails from third parties, but the general reference to "our...affiliate partners" did not make clear the nature of such third parties.
  • There was no clear connection between the types of products or services provided by the website the complainant signed up to and those provided by Lands' End.

ICO – what happened with Flybe and Honda?

The ICO found both Flybe and Honda to be in breach of the Privacy and Electronic Communication Regulations (PECR) by sending unsolicited marketing emails to people who had told them that they did not want to receive marketing emails.

Flybe sent more than 3.3 million emails in August 2016 titled "Are your details correct?", advising recipients to amend their data to ensure it was up to date. By updating, they would also be entered into a prize draw. Honda had sent 289,790 emails aiming to clarify customers' choices for receiving marketing emails.

Both companies believed the emails would not be classed as marketing, but customer service emails to help them comply with data protection law. However, the companies could not provide the ICO with evidence that customers had given consent to receiving these types of emails, which is a breach of the PECR.

The ICO has made clear that "sending emails to determine whether people want to receive marketing without the right consent, is still marketing" and therefore both companies were guilty of breaching the PECR and fined accordingly. Organisations should ensure that they maintain clear records of what an individual has consented to, and when and how consent was obtained, so that they can demonstrate compliance should a complaint be made.

Direct Marketing – what are the rules?

Those involved in direct marketing must have the consent of those individuals they aim to target with marketing campaigns.

  • Consent: to be valid, consent must be (1) knowingly and freely given; (2) clear; (3) specific; and (4) involve a positive action indicating agreement.
  • Explicit: explicit consent is always the safest option and this is required for sending electronic mail under the CAP Code.
  • Opt-in: the ICO promotes opt-in consent as best practice and this will be mandatory as of May 2018. Opt-in consent is a safe way to demonstrate valid consent as it generally involves a person confirming their agreement to specified methods of contact by ticking a box or boxes. An indication from an individual that they object to, or opt-out of, certain methods of contact is less certain as failure to object or opt-out only means that the individual has not objected and does not automatically mean that they have consented.
  • Method of contact: For consent to be given to direct marketing, the individual must also consent to the type of communication; therefore an organisation cannot send text messages unless the individual has specifically consented to receiving text messages.
  • Statement: The organisation must have provided the individual with a clear and prominent statement that explains the action required will be taken as consent and what the organisation will do with this consent. Make sure your statement is sufficiently clear so that you are not caught out like Lands' End. The ICO's Privacy Notices Code of Practice recommends that if you intend to pass data onto third parties, those third parties should either be named or people should be given a clear idea of the types of organisations to whom you will supply their information.

Read more on consent under the GDPR (General Data Protection Regulation), which will come into force in May 2018, in our mini-series on the ICO's draft guidance on Consent:

Part 1: What is Consent?

Part 2: What does this mean for your business?

Part 3: Do we always need consent?

Part 4: Recording and managing consent

© MacRoberts 2017


The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.