What is the definition of direct marketing?
Section 11 of the Data Protection Act 1998 refers to direct marketing as ‘the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals’.
We regard direct marketing as covering a wide range of activities that apply not just to the offer for sale of goods or services, but also to the promotion of an organisation’s aims and ideals. This would include a charity or a political party appealing for funds or support and, for example, an organisation that is encouraging individuals to write to their MP about something or to attend a public meeting or rally. This view was supported by the UK Information Tribunal ruling when they dismissed an appeal by the Scottish National Party, which argued that political campaigns were not covered.
For more information, see our detailed guidance on Direct marketing.
How do the defined terms apply to marketing?
The Regulations refer to person, caller, subscriber, individual subscriber, and corporate subscriber, among other defined terms.
When the Regulations say:
person – this means a ‘legal’ person, for example, a business or a charity, or a ‘natural’ person, that is, a living individual;
caller – this means the instigator of a call. This is usually a legal person. The call would not be made or the fax, email, text or picture message would not be sent unless this caller paid for it to be made or sent;
subscriber – this means the person who pays the bill for the use of the line (that is, the person legally responsible for the charges);
individual subscriber – this means a residential subscriber, a sole trader or a non-limited liability partnership in England, Wales and Northern Ireland;
corporate subscriber – this includes corporate bodies such as a limited company in the UK, a limited liability partnership in England, Wales and Northern Ireland or any partnership in Scotland. It also includes schools, government departments and agencies, hospitals and other public bodies, for example, the Information Commissioner’s Office.
Does the phrase ‘for the time being’ mean consent only lasts a finite period?
Many of the Regulations refer to consent being given ‘for the time being’. We interpret this as meaning that consent will remain valid as long as it is still reasonable to treat it as an ongoing indication of the person's current wishes.
There is no fixed time limit after which consent automatically expires. However, someone can withdraw consent at any time – for example, by opting out, unsubscribing, or making a complaint. And even if consent is not withdrawn, it will become less reliable as time passes.
The phrase ‘for the time being’ is also used in the Regulations for notifications of objection. For example, Regulation 21(1) (a) says that unsolicited direct marketing calls should not be made if the subscriber has notified that such calls should not be made ‘for the time being’. We interpret this as meaning that the objection will remain valid until there is good reason to ignore it; for example, if the individual has changed their mind and told you that they now consent to receiving your calls. The most recent indication of a person's wishes will always be paramount.