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Compliance Update clarifications to the General Guidance Note on Privacy and consent to charge

Compliance Update – clarifications to the General Guidance Note on Privacy and consent to charge

10th May 2012

PhonepayPlus today issues a Compliance Update on clarifications to its General Guidance Note on Privacy and Consent to Charge.

Background

PhonepayPlus has received a number of recent questions around the interpretation of rule 2.4.2 of the Code of Practice (twelfth edition) (“the Code”). Rule 2.4.2 reads as follows:

Consumers must not be contacted without their consent, and whenever a consumer is contacted the consumer must be provided with an opportunity to withdraw consent. If consent is withdrawn the consumer must not be contacted thereafter. Where contact with consumers is made as a result of information collected from a premium rate service, the Level 2 provider of that service must be able to provide evidence which establishes that consent.

The questions we have received relate to the way in which “consent” is defined within rule 2.4.2, particularly as to whether the definition includes the practice of “soft opt-in” - as defined in the Privacy Electronic Communications Regulations (PECR) and PhonepayPlus’ Guidance on Privacy and Consent to charge – a practice where merchants retain the right to market to consumers who have previously purchased their similar products or services.

To clarify our position in response to these enquiries, PhonepayPlus has made a number of minor revisions to Guidance on Privacy and Consent to Charge. We do not propose to consult on these clarifications, as they do not substantively alter the Guidance or our expectations, and do not place any additional burden or expectations upon providers.

Providers should read the revised Guidance in order that they are clear about our position as regards to soft opt-in and can review, and if necessary refine, their procedures accordingly.

Clarifications to the Guidance

The clarifications made to the Guidance on Privacy and Consent to Charge are contained within sections 4 and 5. The table below sets out the specific changes.

Paragraph Reading in current Guidance Note Reading in new Guidance Note
4.3 PECR’s principles (which are applied more generally to all marketing relating to a premium rate service) are that:
PECR’s provisions on consent (which apply to all marketing relating to a premium rate service by virtue of rule 2.1 of the Code) in summary are that:
4.3 (second bullet point) Soft opt-in marketing materials only concern similar products to the individual’s initial purchase, or area of interest (e.g. it would not be appropriate to promote adult services to someone who had only previously purchased ringtones);
Soft opt-in marketing materials must relate to that marketer’s products or services and only concern similar products to the individual’s initial purchase, or area of interest (e.g. it would not be appropriate to promote adult services to someone who had only previously purchased ringtones);
4.3 (third bullet point)
Consumers who have given soft opt-in permissions must be given a simple means of opting out at the time of initial purchase, and in each subsequent promotion; and (…)
Soft opt-in consumers must be given a simple means of opting out at the time of initial purchase, and in each subsequent promotion; and (…)
4.3 (fourth bullet point) Where the individual’s details are to be passed to third parties, they must be clearly informed of this, and positively confirm their acceptance (a practice known as ‘hard’ opt-in).
Where soft opt-in conditions are not met a positive action signifying consent must be obtained from consumers after clear information about the intended activity has been provided. For example, where the individual’s details are to be passed to third parties, they must be clearly informed of this, and positively confirm their acceptance (a practice known as ‘hard’ opt-in).
4.4 While it is not mandatory to use hard opt-in for consent to marketing which is not from third parties, hard opt-in can also be used in this way. While it is not mandatory to use hard opt-in for consent to marketing which is not from third parties (i.e. where soft opt-in applies), providers can also seek hard opt-in consent.
4.5 Previously did not exist
In respect of rule 2.4.2, whilst the Code does not itself define consent, we consider that the soft opt-in practice, where it complies with paragraph 22 (3) of PECR (as explained in the bullets above), will be an acceptable form of consent. Providers should note that rule 2.4.2 contains additional requirements relating to marketing that must be satisfied where relevant.
5 Verifying consent for soft and hard opt-in
Verifying consent for soft and hard opt-in for the purposes of PECR and rule 2.4.2 of the Code

Providers of PRS should note that these changes have been made to Guidance on Privacy and Consent to Charge and take immediate effect as of today’s date, 10th May 2012.