In the second of a two part feature on the law relating to data, Sean Egan explores some new regulations affecting electronic direct marketing.
This month new laws come into force which will prevent unsolicited direct marketing by email, text message and fax. After that date organisations will only be able to send out electronic direct marketing when individuals have opted to receive it. These regulations will not affect marketing by post and the existing laws under the Data Protection Act are not changed. These are a targeted tightening, principally intended to prevent spam.
In ‘Whose customer?’ (ArtsProfessional issue 62, November 17) I discussed mailing list sales and swaps, and what organisations need to do in order to be able to use collected data. You should consider whether there is any possibility in the future that you may wish to send customers or potential customers emails, texts or faxes. If so you need to review your current arrangements for collecting data. If another organisation or venue collects the data, you need to ensure that they have the appropriate procedures in place too. Otherwise, if at some future date you decide to run a marketing campaign using these forms of communication, you will have to seek consent from each individual.
For the information to be useable in this way, an opt-in can be effected either by offering a box which an individual must tick to confirm that he/she wishes to receive marketing materials, or by including a positive statement about the way their information will be used. You must also give individuals the opportunity to opt out of receiving electronic marketing materials at any time.
In the previous article I mentioned the potential help that ‘legitimate use’ may provide for companies wishing to send material to punters about similar sorts of shows. There is a similar exception in the new regulations. Where punters have opted to join a mailing list, or attended or enquired about shows presented by the organisation, then electronic direct marketing may be possible in relation to similar goods or services so long as the individual can opt out at any time. Proper systems must be in place to identify the individuals to whom it relates.
The regulations specifically preclude the trading and exchanging of databases even when an individual has opted in and it is only the organisation to which the individual has provided his/her consent that can send direct electronic marketing. This will certainly be a problem for performing companies where it is the venue that collects the information and where the venue is not acting as agent of the company. If marketing of the performing arts is going to use emails, faxes and text messaging in the future, these provisions will have a significant dampening effect particularly on self-promoting orchestras and peripatetic companies. Whilst spam may turn out to be the nemesis of the Internet, the arts do need as many avenues for responsible marketing as possible in order to be able to compete with other media.
Sean Egan is Head of the Arts & Media Department at Bates, Wells & Braithwaite, Solicitors. e: s.egan@bateswells.co.uk