Digital Economy Bill Threatens Draconian Measures to Tackle Spammy Tactics

Be alert to the danger of new government Digital Economy bill

Its hard to believe, but digital marketing may be at its most critical point to date. Day-to-day it continues selling services and products, and maintaining purchasing loyalty while many of those involved are unaware of why a government bill could change everything forever.

The act is nearing its final phase of Westminster consideration before Royal Assent is the Digital Economy Bill, and the element of danger in what is wide and far reaching legislation is a section that instructs the Information Commissioners Office to produce new direct marketing guidelines, which incorporates anything to do with consumer data relating to digital marketing.

This in itself may seem fairly innocuous until the background is considered. The ICO will be instructed to produce new recommendations for ministers to consider. But it knows and understands acutely that the number one subject for MPs postbags is nuisance marketing. It is also a favourite topic of the popular press. In other words, there is great pressure on the ICO to produce regulation that severely curbs direct and digital marketing practice, and that means the ability to track and have dialogue with members of the public.

During debates on the Digital Economy Bill in the House of Commons, marketing came in for dire criticism. Mark Menzies, Conservative MP for Fylde, branded marketers as being the lowest of the low, and that they could not be trusted to abide by regulations.

'The companies that overwhelmingly engage in direct marketing are rogues and shysters", he said. 'I say to Ministers and officials that we are basing a law on the hope that we are dealing with honourable people. We are dealing not with honourable people, but with the lowest of the low. They are people who are prepared to break the law as it currently stands and to prey on the vulnerable in their tens and hundreds of thousands.'

Such criticism was matched by Labour MP Graham Jones, who declared there is a lack of transparency surrounding opt in opt out rules, and that it is a scam that generates large volumes of junk email.

'Ultimately, it is a scam in which information is sold on. Then we get that abundance of unwanted emails because someone has commercialised our data. That bulk commercialisation is unacceptable, and the Government have to step in,' he said.

It is against this backdrop that the ICO is tasked with creating new rules, and it is unlikely that government ministers will look favourably upon anything other than significant restrictions. But there is something that can be done to influence the outcome of the ICO decision and influence ministers. Part of the instruction to the ICO under the Digital Economy Bill is to consult relevant marketing representatives.

Companies that use telemarketing have created a pressure group called Call For Action On The TPS. Its sole purpose is to come up with a viable alternative to TPS to put to politicians and the ICO as the new regulation model for telemarketing.

The group, which has just been formed, is pooling its ideas based on the successful online communities in which scientist across the world pool research and ideas to invent things and develop projects. Any interested party can join Call For Action On The TPS 

There is a similar opportunity for the digital marketing sector through existing representative bodies, or it can emulate telemarketers and set up a single issue pressure group. This is important because when the new regulations are introduced they are likely to be with us for at least a decade.

Any discussion on marketing regulation would not be complete without reference to GDPR. Following Brexit it may have seemed logical to assume the General Data Protection Regulation, or EU data law would no longer apply. But the Government has stated that the law will remain on the statute agenda and come into force in May, 2018 as previously set out

In fact, the Government has no choice in the matter. The law will take hold across Europe in little over a year, which could be before Brexit negotiations even open, never mind conclude. It is only after conclusion of exit from the EU that any decision to withdraw from GDPR could possibly happen.

As part of its remit to produce new guidelines the ICO may simply put forward the idea that GDPR remain in place, or it may suggest keeping it in tact with amendments. Given that UK companies that sell into Europe will need to abide by GDPR it is unlikely the ICO will suggest brand new regulation and in doing so create a two tier system for international traders. Any amendments will almost inevitably be of a restrictive nature. Relaxing rules contrary to GDPR would make little sense given the likely commitment to EU data law.

To influence what the new rules look like talking with the ICO is a key consideration, and for those with political influence dialogue with ministers will be even more effective. Having constructive dialogue with both parties based on the proposal of regulations that provide adequate protection for the public while allowing ethically compliant communication is the only constructive way forward.

By Dene Walsh, Operations and Compliance Director at Verso Group