A Consumer Guide to Dealing with Unsolicited Direct Marketing.
Data Protection legislation takes the sending of unsolicited direct marketing ("junk mail" or "spam") very seriously and offers protection against this practice. The application of data protection law varies depending on the medium through which the marketing is delivered. What follows is a summary of the main types of direct marketing and advice on how to deal with them.
Postal marketing
This is the traditional and oldest form of direct marketing. For mail received through your letter box to be considered to be direct marketing it must be addressed to a named person and must be promoting a product or service. Unaddressed mail put into your letter box or mail addressed to "the occupant", "the resident" or "the householder" does not necessarily involve the use of personal data and consequently data protection legislation does not apply.
If you do not want to receive direct marketing, you have a right to notify the sender that you object to receiving such material. It is against the law (Section 2 of the Data Protection Acts) for an organisation not to respect a written request from you. If you continue to receive marketing after you have objected you can make a Complaint to the Data Protection Commissioner.
There is also an obligation on an organisation that has not obtained your details directly from you to inform you of the original source of your details. This will enable you to contact the original organisation and object to it using or distributing your details for marketing purposes.
The Electoral Register
You have the right to prevent information about you on the register of electors being used for marketing purposes. Each local authority maintains a Register of the individuals in its area who are entitled to vote in elections. Two versions of the Register are kept. The "Full Register" contains the names and addresses of all those entitled to vote. The information in the Full Register can only be used for electoral purposes or for other purposes laid down by law. The "Edited Register" contains a sub-set of the names and addresses on the Full Register. The information on the Edited Register can be used by companies for direct marketing.
You can find out if you are on the Edited Register by looking up the Register at your local authority office public library or Garda station. You can also check online at www.checktheregister.ie.
If you wish to avoid receiving unsolicited marketing material based on the electoral register it is important that you tell the local authority by ticking the "opt-out" box on the registration form that is distributed to households or by contacting the local authority
Electronic Marketing
The Electronic Privacy Regulations (SI 336 of 2011) give you the right to prevent organisations from using electronic means (phone, SMS,email, fax) to contact you in order to sell you a product or service. The rules that apply to the different means of electronic marketing are set out below.
Marketing Phone Calls
The easiest way to prevent organisations phoning you on your fixed phone number (landline) for marketing purposes is to have your preference recorded on the National Directory Database (NDD). The NDD is traditionally the tool used to produce printed telephone directories and to supply details for directory enquiry functions. You can now contact the company to which you pay telephone line rental - see List of Phone Providers and their Details - and inform them that you want your preference not to receive marketing calls recorded on the NDD. This is a free service. It is an offence for a person to make a marketing call to someone who has a preference not to receive marketing calls recorded in the NDD unless the caller has some form of consent to make such calls. More detailed information on how to prevent colds calls may be found here.
If you get a sales call more than 28 days after your details have been recorded in the opt-out register of the NDD you can make a complaint to the Data Protection Commissioner. We can investigate and prosecute the company if necessary. If you are not on the NDD or if you receive a marketing call on your mobile phone you can ask the caller not to call you again for marketing purposes. It is against the law for an organisation to ignore your request. If that happens you can make a complaint to the Data Protection Commissioner.
It is an offence for a marketer to call you on your mobile phone for marketing purposes unless you have consented to the receipt of such calls on your mobile phone.
Marketing faxes
A marketing fax cannot be sent to an individual (as opposed to a business) without prior consent. However if you have a home office or work from home and use the fax in that context (even in part) then your prior consent is not required. In that situation you can notify the sender that you do not wish to receive such marketing faxes and that person is obliged to respect your preference. If your preference is ignored you can make a complaint to the Data Protection Commissioner.
Electronic Mail
Electronic mail (i.e. a text message, voice message, sound message, image message, multimedia message or email message) for the purpose of direct marketing cannot be sent to you without your prior consent unless it is from someone with whom you have a current customer relationship. The Regulations specify that the marketer must have obtained your contact details in the context of the sale of a product or service to you not more than twelve months prior to the sending of the direct marketing communication or, where applicable, your contact details were used by that marketer for the sending of electronic mail to you within that twelve month period. The rules for direct marketing using electronic mail are simple:
Marketers may send you electronic mail for direct marketing purposes where:
- You have given them explicit consent to do so within the last twelve months,
or
- they have obtained your personal contact details in the course of a sale to you of a product or service within the last twelve months, they informed you of their identity, the purpose in collecting your contact details, the persons or categories of persons to whom your personal data may be disclosed and any other information which is necessary so that processing may be fair, and
- the direct marketing they are sending is in respect of their similar* products and services only, and
- you were given a simple cost-free means of refusing the use of your contact details for direct marketing purposes at the time your details were initially collected, and where you did not initially refuse the use of those details, you are given a similar option at the time of each subsequent communication. (If you fail to unsubscribe using the cost-free means provided to you by the direct marketer, you will be deemed to have remained opted-in to the receipt of such electronic mail for a twelve month period from the date of issue to you of the most recent marketing electronic mail).
Marketers may not send you any electronic mail for direct marketing purposes in the following circumstances:
- if you have not given your prior consent to receiving such mail within the last twelve months in accordance with the options set out above,
- if the identity of the sender has been disguised or concealed or a valid address to which you can send an opt-out request has not been provided, and additionally, where the electronic mail is an email communication, a valid address at which the sender may be contacted has not been provided.
- if you have joined a club to which you pay a subscription for text, multimedia or email message services, unless the direct marketing is directly related to a similar* product or service to the subscription club of which you are a member,
If you are receiving electronic marketing messages contrary to these rules, you may complain to the Data Protection Commissioner.
Premium Rate Services
Premium rate services are subject to rules which are overseen by the Commission for Communications Regulation (ComReg). You can contact ComReg if, for example, you have subscribed to such a service and have difficulty unsubscribing. Further information is available on the ComReg website, www.phonesmart.ie.
How to complain
A complaint about unsolicited direct marketing can be made ONLINE, or in writing to:
Data Protection Commissioner
Canal House,
Station Road,
Portarlinton,
Co. Laois.
LoCall: 1890 252231
Phone: 057 868 4800
Fax: 057 868 47 57
When making a complaint, you should provide as much information as possible, including your own contact details; time and date of the message; a copy of the message if possible, or a summary of contents if not; information about any previous dealing with the sender of the message as well as a statement that you are making a formal complaint. Additionally, if the Commissioner decides to prosecute an offender, you may be asked to give a sworn statement or to appear in Court to give evidence.
Advice on how to protect yourself
Some of the information used to market you is in the public domain, such as the telephone directory or the Electoral Register. However, as stated above, you can still control how that information is used by marketers by having a marketing preference recorded by the bodies compiling such public databases.
In other situations, marketers generally do not obtain your details unless you have either directly given them your contact details or have supplied contact details in the context of entering a competition, a promotion or some form of lifestyle survey. If you are supplying contact details in these circumstances read the conditions of entry carefully in order to understand how your contact details may be used. If the conditions state that your details may be used for marketing, or passed onto third parties to use for marketing, you must judge whether entering the competition is worth it. Even where you do supply contact details, you can always change your mind at a later date and inform that organisation that you do not want to receive marketing. However, this may be of little value when the organisation has already passed your details to third parties.
In general, when you are asked for your contact details, you should ask why they are needed. If you are not satisfied with the reasons offered, or do not trust the organisation, you must judge whether you want to risk volunteering information.
Be careful when supplying details on a public space such as a website forum. Details may be viewed by people without your knowledge and used without your consent. Similarly, be careful if you have a website and are placing contact details on it. Such details are commonly harvested by unscrupulous marketers.
By being careful about how you supply your contact details, you can do an awful lot to limit the use of such data by spammers.
If you own a mobile phone, be careful who else you let use it. It has been known for "friends" to subscribe each other to various services. The same applies to use of your e-mail account.
Further Information
This guide only contains brief details on dealing with unwanted direct marketing.
More detailed information on how to prevent colds calls may be found on the Comreg Consumer Website
There are also provisions relating to direct marketing calls from financial services firms in the Financial Regulator's Consumer Protection Code.The advice of the national consumer agency in relation to unwanted sales calls can be accessed here.
Case Studies relevant to this topic include:
- Case Study 15/07 – Unsolicited postal marketing from Supermarket
- Case Study 4/07 - Company ordered to suspend phone marketing
- Case Study 5/06 - Company ordered to delete database used for sending unsolicited SMS messages
- Case Study 11/05 – Prosecution of company for unsolicited marketing communications