Data protection is always a potentially thorny issue, whatever side of the “Pond” you come from.
The European direct marketing industry, however, has very much got its house in order on this issue, and the “safe harbor” agreement with the United States regulating trans-Atlantic data exchanges has been a major step forward.
Yet the DM industry in the United Kingdom recently received a severe setback, courtesy of the Office of the Information Commissioner, the body responsible for ensuring companies comply with data protection rules.
The office, according to its latest annual report, aims to: “Achieve a high level of awareness of rights and how to use them under the Data Protection and Freedom of Information Acts.” Few would argue with the merits of this aim. Indeed, direct marketing has an improving consumer perception because more people understand how it works, how it is policed and what rights they have. Ignorance has been our biggest enemy, and arguably we, as an industry, were guilty of not doing enough to combat this ignorance for too many years.
Experience shows that once you explain to consumers how the industry works and why it works that way, negative feelings often dissipate. It is in all our interests to have direct marketing-literate consumers and to act openly and honestly with them.
Against this background, therefore, a trial consumer awareness ad campaign launched by the Information Commissioner came as a shock to the industry.
Though multimedia, it was the radio ads that generated the most consternation among the DM fraternity. In the spots, a researcher asks a consumer a series of detailed lifestyle questions, then aggressively informs the consumer that the data will be sold, despite the consumer's protestations. The ads end with the following: “Think before you give out any personal information unnecessarily. You never know where it will end up.”
It is, of course, an unreal scenario. It is a legal requirement for consumer consent to be gained at the point where information is collected. Consumers have the right to opt out at this stage.
Is the commissioner simply reacting to flagrant breaches of the Data Protection Act? Not judging by the IC's own annual report. This shows that consumer complaints about direct marketing are falling. The report states that of 21 successful prosecutions under the act, only four were cases of unlawfully procuring information. That is hardly the basis for a hard-hitting ad campaign.
Critics also say that if the commissioner's aim really is to raise awareness of consumer rights, the ads fail to do so. On the contrary, they suggest consumers don't have rights. So aside from anything else, the campaign fails as a piece of effective advertising.
Not surprisingly, the campaign has caused an uproar, and the UK's Direct Marketing Association has met with the Information Commissioner to protest.
Reports suggest that the Information Commissioner now has shelved plans to roll out the campaign beyond the test phase. And the radio ads are also believed to be under investigation by the Advertising Standards Authority, the body that polices advertising. Most likely, the ASA is looking into a possible breach of article 7.1, namely: “No advertisement should mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise.”
While all this offers some comfort for direct marketers, the reality is that a certain amount of damage has already been done. The direct marketing industry has made painstaking efforts to improve its image and, with a combination of effective self-regulation and responsible legislation, is one of the most efficiently policed business sectors in the country.
Over the past year the UK DMA has also undertaken an awareness campaign to educate consumers about direct marketing and tell them about their rights and how they are protected.
Yet the commissioner's campaign undoubtedly has, at one fell swoop, undermined consumer confidence in the sector. Only time will tell whether the campaign damages response rates. If so, the damage will probably be most critical to the collection of information from lifestyle questionnaires, which now provide the basis for much mailing activity.
There also is little doubt that the controversial campaign has sullied the relationship between the DM industry and the Office of the Information Commissioner. At a time when it is in everyone's interests to work together to increase consumer confidence and offer reassurance on consumer rights, this might prove the most damaging legacy of all.
