Missed anonymous calls that leave you wondering who it may have been… Calls from unknown numbers at the most inconvenient moment… Wasting money in returning the call… The displeasure of discovering, mainly if we were expecting a specific important call, that it is only a marketing communication… The frustration of spending long and precious minutes repeating that we are not interested in whatever product the interlocutor is trying to sell…
It most certainly sounds familiar…
Out of my personal experience I can refer quite a few examples of unsolicited marketing, some of which actually could have been qualified as marketing harassment. Not the best publicity, if you ask me…
From evening calls, to anytime calls, from participating in a raffle only to be attacked by unwanted marketing initiatives, from registering in an online shopping website only to be contacted by financial institutions intending to sell you some credit card, from ordering a body lotion only to start receiving advertising of completely unrelated products…
I am specifically referring to business-to-consumer (B2C) advertising and marketing, through all the channels technologically available to promote companies’ commercial campaigns of products and services among individual buyers.
However, telemarketing is, in my very personal opinion, among the most annoying direct marketing initiatives. It gets worse when calls are repetitive, insistent, and even aggressive, as many of them usually are.
Worse than that? Well, I can easily point out having a salesperson ringing on your bell door right before or, even worst, during dinner time…
If the assumption that consumers purchases are usually based on personal emotions is correct, despite not being a marketing genius myself, I am pretty sure that bothering potential clients is never (ever!) the way to go when it comes to attract consumers. As a matter of fact, I am certain that it can actually lead to the opposite effect. So, if you own a business and somehow your marketing campaign is not working, you might want to check this criterion.
Nevertheless, it is astonishing how abusive and unlawful marketing initiatives frequently are. It never ceases to amaze me the number of businesses that seem to be completely unaware of their responsibilities as data controllers. I always fail to understand if they actually ignore their duties or if they just pretend so in order to take advantage of the data subject most likely ingenuousness on the matter.
Legal requirements, as those foreseen in the E-Privacy Directive, i.e., the Directive on privacy and electronic communications and the Directive 95/46, which is applicable as direct marketing requires personal data processing, are not suitably taken into consideration. It is like some companies do not acknowledge that individuals have any rights over their personal data, including the absolute right to object to their personal data being used for marketing purposes.
However, while it is merely an inconvenience for me, as I know which reasoning I shall refer to and which means are required in order to cease any further annoyance quickly, not everybody does. Sometimes it takes people months before being able to get definitely rid of any undesirable contact.
The very basic requirement that is applicable to direct marketing – the prior consent of the data subject – seems to be easily overlooked as many companies sell or share data from customers without their authorisation. Most of the time, individuals do not even fully appreciate that they giving their consent or what they are consenting to or are not even given the possibility to refuse such use of their personal data.
This is particularly worrying considering all the changes which are on the way. If businesses keep ignoring or refusing to acknowledge the requirements they owe to comply with, they will commit the offences and suffer the sanctions which most likely will be foreseen, for instance, in the future EU General Regulation on Data Protection.
I already had the opportunity to address some of those forthcoming changes here. However, these are particularly restrictive regarding marketing initiatives.
All forms of marketing communications, including telemarketing and direct mail, will be subjected to the individual’s consent. Indeed, the current ‘opt-out’ checkboxes system will be replaced by an ‘opt in’ permission method. This means that any communication which hasn’t been the object of a previous, free, explicit and informed consent of the data subject will therefore be forbidden.
The criterion of explicit consent requires a clear statement or an affirmative action. In this context, companies collecting information will have to ensure that the data subject is well aware of the specific purposes of the data collection, namely for marketing purposes.
In parallel, the data subject would be able to access the data collected without being charged any fee. Moreover, if a data subject decides to opt out of marketing communications, marketers will have to delete any records they hold, if requested. Marketers won’t be able to retain, in that case, any detail, unless they can show legitimate grounds for retaining the data.
As a direct result, if companies cannot demonstrate that consent has been previously explicitly given to marketing purposes, they will have to delete it. Databases and contacts lists will most certainly be severely reduced.
The forthcoming changes will obviously make the conducting of marketing campaigns more difficult and, consequently, will require a shift in the marketing strategies in order to be compliant with the law.
As a consumer, I am always favourable of legislation which protects individuals regarding ambiguities related to the use of their personal information.
As lawyer, I can only provide timely and relevant information that will help my clients to comply with the law while (hopefully) simultaneously making a profit for their company.
The unpleasant side of non compliance with the rules on direct marketing does not limit itself to bad publicity or reputation. Fines, legal action and financial damages also have strikingly negative effects on businesses. For this reason, companies should start preparing for the forthcoming changes in advance in order to avoid any surprises, save time and money and make the most out of a new situation.
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