Mani Roberts, Regulatory Affairs Manager at The IPM

14th November 2019

The recent Legal Update event hosted by the DMA covered a wide-range of issues the promotional marketing industry is presently wrestling with. Dominated by GDPR, cookies and Brexit it raised interesting questions about future decision-making in the sector.

The DMA’s update on the current status of legal matters they’re working on gave an insight into the direction the industry is heading. A run-down of recent GDPR breaches illustrated how businesses are falling foul of the new laws, examples ranged from a six-figure fine for sending marketing emails without permission to a fine of just over one thousand pounds for selling data about car policy holders involved in accidents. With multiple breaches occurring across Europe and the ICO investigating unsolicited emails sent to consumers it’s clear this area is still rapidly evolving.

It became apparent that the industry is having to adapt rapidly to these new rules and that the level to which companies are complying varies, until further clarification or guidance is issued it will continue to be a complex area to navigate. One step in this direction are new ePrivacy regulations that seek to further protect people’s data but it was clear from the presentation that this won’t solve all the problems that arise and that the new rules will still be open to interpretation. The DMA is also working with the Adtech industry to bring them into line with these new regulations though this is slow-moving process.

A particular focus going forward will be the relationship between data and children as GDPR highlights children requiring special protection when it comes to the storing and use of data. It was clear from the DMA that this area is now a priority and that changes to the rules will be coming soon to ensure minors are well-protected. This will be reinforced by the new codes of conduct that the DMA and FEDMA are working on specific to the marketing sector.

Linked to the wonderful world of GDPR is cookies and problems with their acceptance. With the introduction of GDPR the bar for consent has been raised substantially but it was clear from the views expressed during the open discussion on the subject that there are a number of different approaches being taken by businesses not all of which comply with the rules in this area. From not giving consumers the option to reject cookies to giving people hundreds of consent options it was clear the industry is not consistent or united in this area and it will be a particularly difficult problem to solve.

The issue that loomed large across the whole event was Brexit, its effect on the use of data and its impact on the marketing and advertising industries. A full and thorough update of the current Brexit situation and the positions of the various camps was provided by the knowledgeable Michael Sturrock, Public Affair Manager at the DMA but as he noted whether his guidance would still be valid tomorrow was another matter…

The key issue discussed was working out what impact it will have on the industry and data protection. Preparing for the worst-case scenario of a no-deal Brexit would be the best course of action for businesses, if this took place it would obviously lead to a period of uncertainty which may be significantly longer than anticipated, most likely in the 1-2 year range. Promotional marketeers should open dialogue with clients as early as possible whilst also reviewing European operations and raising awareness within their organisations about the upcoming changes.

These changes could manifest in different ways from maintaining the status quo and the free flow of data to individual transfer contracts between businesses to a certified code of conduct created by FEDMA that governs all data flow between the UK and the EU. The bigger question of what will be the focus of any post-Brexit regulations also arose and whether the state, businesses or the individual will be at the heart of the new rules. Whilst debating this a number of consultations are taking place that collectively address changes in the UK regulatory sphere and will inform the decisions taken after Brexit.

The ASA updated attendees in regards the new gender stereotyping rules and how their application is developing. The focus on the harm caused by the portrayal of gender roles within advertising has resulted in four investigations to date two of which were upheld and two rejected. Three of these ads were shown to the room and resulted in some lively debate in regards how the new rules have been interpreted. It’s still early days but it appears as though the new stricter rules have been successful in trying to address gender stereotyping in ads whether focused on the portrayal of women or men. The ASA have reflected societal changes with these new rules and will continue to develop the industry’s understanding of their application.

It was an informative and educational event that provided valuable insights into the current regulatory position when it comes to data but also how the future may evolve in this area.

If you have any questions about the issues raised at the event please contact the LAS via legal@theipm.org.uk.