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Today sees the coming into force of a new code of practice by the Direct Marketing Association (DMA).
If you or your clients are a DMA member the new Code will need to be complied with as a condition of membership.
The fourth edition of Code sets out the following principles:
Against each of these principles the Code then sets out a handful of desirable outcomes.
For example, customers receiving 'marketing information that is relevant to them' and which reflects 'their preferences' is a stated outcome against the principle of 'putting customers first'. Each of the five principles and outcomes fills a succinct A4 page.
So far so reasonable.
Even so, for many in the business, the very mention of the 'compliance' can bring them out in hives. The DMA seems to recognise this. It states, in a refreshingly honest way,
It may not be the most thrilling side of marketing, but following the highest standards of best practice is vital to the success of your business.
The change is not without its challenges though. Do not mistake brevity of content for an easing of the compliance burden.
Undoubtedly, the move from the previous regime of more detailed guidance to a rulebook based on principles will be tricky for some businesses.
We spoke with Dan Smith, Head of Advertising & Marketing Law at Wragge, Lawrence Graham & Co earlier about these developments.
He says that the new Code signals a welcome change in focus from the DMA.
Basing the new code on principles & outcomes, rather than just black letter rules, should build on the long-standing requirement—from earlier versions of the Code—to comply with the code in spirit, as well as letter, and provide flexibility as technology continues to transform direct marketing.
He goes on to state that,
The new approach also places compliance firmly at the heart of direct marketing. It’s not a discrete burden which can be isolated from the rest of the business—it’s central to consumer trust and the growth of the industry. The introduction to the code and the new principles go some way to getting that message across.
So will these changes signal a difference approach to enforcement, particularly given that principles and outcomes are by their nature, more general in scope?
Only time will tell.
Dan concludes by saying,
We will need to see how the code ‘beds in’ over the next year or so to see whether it ends up driving any real change in enforcement (and, ultimately, market) practice.
A helpful list of legislation that affects businesses in this area is set out in the Code after the five principles. This offers a useful overview of the types of laws that need to be considered when marketing.
Take care though: some of the laws which are set out in this part of the Code are no longer in force, despite what legislation.gov.uk says. New laws have replaced some of them.
Our advice? Have a word with a legal advisor. The law—somewhat thoughtlessly—never stands still. Acts and regulations are enacted and repealed at an alarming rate. Your advisor can keep track of these and also keep an eye out for further developments in the area*.
In conclusion, although the new rules are not as lengthy, do not be fooled: the movement from a more box-ticking regime to a system of principles & outcomes does require some thought.
Just because you comply with the old regime, it does not necessarily follow that you will comply with the new one.
Take some time out to have a look at what you do now. Does it comply? What changes could be made? Do our new projects fit in with the new regime's principles?
Plenty of questions to be getting on with.
If you have any thoughts on this in the meantime, do let us know below. It is always good to hear thoughts from lawyers to non-lawyers alike.
* For example, the Data Protection Act 1998 is currently in its dotage and franticly hanging on for dear life. When it finally perishes, the EU's new Data Protection Regulation will replace it with a whole new set of new and restated legal norms. This change is likely to have an impact on many direct marketing businesses.
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