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Draft Direct Marketing Code from the ICO – have your say

3 February 2020: the Information Commissioner’s Office (ICO) has issued a consultation on its latest piece of draft guidance. This is on the Direct Marketing Code which is a statutory code required by the Data Protection Act 2018 (DPA 2018).

The code applies if you process personal data for direct marketing purposes (including emails sent to individuals to market your services). The guide is designed to explain the law, when it applies and what the ICO considers to be good practice.

At 123 pages long, the guide is comprehensive but not necessarily an easy read. The subject is difficult because organisations have to bear in mind the e-privacy rules as set out in the 2003 Privacy and Electronic Communications Regulations (PECR) as well as the DPA 2018 and the GDPR, and these do not always sit easily side-by-side.

A good example of this conflict is how to decide which lawful basis to use. As with any form of personal data processing you need a lawful basis backing you up. The GDPR states that you can use "legitimate interest" for marketing, but in some situations under PECR you can only use "consent". The draft guide states that if this is the case, then "consent" must be your lawful basis and you must follow the rules regarding consent under the GDPR.

We would like to know whether the guide makes things clearer or just muddies the waters. If you have any examples of direct marketing situations that are causing you difficulty then please let us know. The ICO has promised that it will produce a series of practical tools to further help organisations comply with the code. We would be interested to hear what sort of practical tools you or your clients would find most useful.

“It may appear that the ICO does not always appreciate the particular pressures that accountants and insolvency practitioners face when trying to comply with the legislation. It is important that we highlight what these are,” says Dr Jane Berney, ICAEW Technical Manager for Business Law.

Members can either complete the online survey themselves (by 4 March 2020) or submit their comments to jane.berney@icaew.com (by 28 February 2020) for inclusion in an ICAEW response on behalf of members.

To help with any questions you may have, ICAEW has built a GDPR hub which is kept up-to-date by Jane Berney.