Claims Management Regulation. Marketing and Advertising Guidance Note

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1 Claims Management Regulation Marketing and Advertising Guidance Note July 2013

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3 Contents Introduction 1 Telemarketing 2 Making telesales calls 2 Data and third party compliance 4 Content of telesales calls 4 Telephone Preference Service 7 Making telesales calls to numbers on the Telephone Preference Service register 7 Staff and third party compliance 8 Use of auto diallers and silent calls 9 Use of auto diallers 9 Staff and third party compliance 10 Automated message telemarketing 12 Use of automated messages 12 Content of automated messages 13 Third party compliance 13 SMS marketing 14 Sending SMS messages 14 Content of SMS messages 15 Data and third party compliance 16 marketing 17 Sending messages 17 Content of marketing 18 Third party compliance 20 Websites and e-privacy 21 Use of cookies on websites 21 Content required for websites 21 Third party compliance 24 Checklist 25

4 Introduction This guidance note is intended to assist authorised businesses to ensure that their advertising and marketing complies with the Conduct of Authorised Persons Rules 2013 (2) and other relevant legislation. It does not seek to provide best practice advice, to extend the rules or to introduce new rules. This guidance note provides specific advice for the various different marketing methods used by the industry to ensure compliance with the relevant rules and legislation. Businesses are advised to ensure that they are aware of the Conduct of Authorised Persons Rules 2013 (2) which can be found on our website or by using the following link uk/downloads/claims-regulation/conduct-of-authorised-persons-rules.pdf. The conduct rules that are referenced in this guidance note are contained within the Client Specific Rules that include the requirements in relation to advertising, marketing and soliciting business, taking on business, and, representing a client. For further marketing advice, or business advice generally, businesses should contact the Business Support Team on or The guidance note gives a brief outline of other relevant legislation for marketing and advertising including: Conduct of Authorised Persons Rules 2013 (2) (conduct rules) Communications Act 2003; The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR); The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011; Direct Marketing Association s Direct Marketing Code of Practice (DMA Code of Practice); The Electronic Commerce (EC Directive) Regulations 2002 (E-Commerce Regulations); The Consumer Protection from Unfair Trading Regulations 2008; and UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code). Businesses are advised to contact the relevant regulator or organisation for further information and guidance in respect of their obligations and compliance. 1

5 Telemarketing To ensure the compliance of your telemarketing the Conduct of Authorised Persons Rules 2013 (2) (conduct rules) and other relevant legislation relevant to telemarketing are detailed in this section. They provide the requirements for how telemarketing can be undertaken; specify information that you are required to provide to potential clients and detail the content that cannot be used in telemarketing scripts. They also detail your obligations in ensuring that staff and third parties are complying with the rules and legislation when using telemarketing to advertise your services. For in depth advice on the Privacy and Electronic Communications (EC Directive) Regulations 2003, please contact the Information Commissioner s Office (ICO). Making telesales calls The following legislation and conduct rules provide the requirements you will need to comply with when making or instigating the making of telesales calls to advertise your services. Privacy and Electronic Communications (EC Directive) Regulations 2003 The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) provides that you must not make or instigate the making of unsolicited telesales calls to any number listed on the Telephone Preference Service (TPS) register. You must ensure that you screen the data you intend to use against the TPS register. If the person you have contacted requests that you stop making telesales calls, you must comply with the request and cease making marketing calls to that number. Additionally, if someone withdraws their overriding consent to be contacted you must cease to make telesales calls to them. You must identify yourself when making telesales calls. If asked, you must also provide details of your business address or a freephone telephone number that you can be contacted on. If your telesales calls are made by a third party you must ensure that they are making them compliantly as it is your responsibility as the instigator of the calls. Failure to comply with your obligations under PECR would be a breach of General Rule 5 of the conduct rules. Further guidance of your obligations under PECR with respect to telemarketing can be found here. The ICO and the Office of Communications (Ofcom) have recently issued a joint letter regarding the action that they are taking in respect of tackling nuisance calls and messages, a copy can be found here. Consumer Protection from Unfair Trading Regulations 2008 Under The Consumer Protection from Unfair Trading Regulations 2008 there is a general duty for you not to trade unfairly to consumers before, during and after any contract is formed. Misleading actions or omissions and aggressive practices that affect the decision that a consumer makes in respect to using your services are prohibited. There are also specific unfair practices that can not be used when dealing with potential clients which include: 2

6 Claiming a trader or his service has been approved, endorsed or authorised by a public body (such as the MoJ) when it has not. You should never make such claims about yourself or your service. Describing a service as free or without charge or similar if the consumer has to pay anything other than the unavoidable cost of responding. Making persistent and unwanted contact by telephone, fax, or other remote media. Conduct of Authorised Persons Rules 2013 (2) The Client Specific Rules set out how you must conduct your relationships with clients. The rules must be complied with at all times, and you must be able to demonstrate that you comply with the rules. Client Specific Rules, Rule 4: Cold calling in person is prohibited. Any other cold calling (by telephone, , fax or text) shall be in accordance with the Direct Marketing Association s Direct Marketing Code of Practice. The Direct Marketing Association s (DMA) Direct Marketing Code of Practice Section 21 provides the requirements for telemarketing. It details a number of obligations, which if followed correctly will ensure compliance with the relevant legislation. Calls must not be generated by random number or sequential dialling, manually or by a computer. When making sales, marketing or customer service calls you must, on request, give the full contact details of the advertiser, including the full company/organisation name, registered office address (companies) or principal place of business (unincorporated associations), company registration details, postal address (PO Box numbers are not sufficient), address and terrestrial telephone number. If you use automated dialling equipment you must ensure that you comply with the accepted abandoned call rates, taking into consideration the estimate of answer machine detect (AMD) false positives. When making outbound calls you must provide a caller line identification (CLI) to which a return call may be made which is either a geographic number or non geographic number adopted as a presentation number. Further information from the ICO with respect to CLI can also be found here. You must not make sales, marketing or customer service calls under the guise of research or a survey this is deemed to be sugging and against the DMA Direct Marketing Code of Practice. If you require further advice regarding these rules please contact the DMA uk. Please note you may be required to obtain membership to receive advice. The obligations under Client Specific Rule 4 apply to all authorised businesses even if your business is not a DMA member. Vulnerable Consumers The DMA have produced guidelines for call centres and businesses that make telesales calls to assist them to identify vulnerable consumers and manage a call with someone who may be unable to make an informed decision. We would expect you to use the practical advice contained in the guidelines for call centres dealing with vulnerable consumers. 3

7 Data and third party compliance When completing your due diligence to ensure the compliance of your data and the use of third parties (whether outsourced or as agents) you must ensure that you consider the following conduct rules. Client Specific Rules, Rule 8: Where business is introduced to a solicitor, the business must not act in a way that puts the solicitor in breach of the rules governing solicitors conduct. Solicitors must not make unsolicited approaches in person or by telephone to members of the public in order to publicise their firm. Additionally they are unable to accept referrals which have been obtained as a result of an unsolicited approach. Therefore you will be unable to refer a claim to a solicitor if it is as a result of an unsolicited approach by telephone. An opt in to receiving unsolicited marketing is insufficient to comply with this rule; you will be required to obtain expressed consent for you to contact the consumer if the claim is to be passed to a solicitor. This rule will still apply if the claim is passed onto a claims management business before being referred to a solicitor or if the claim could eventually be referred to a solicitor Client Specific Rules, Rule 9: A business must seek to ensure that any publicity for its services issued by a third party and which is intended to solicit business for it complies with these rules. Businesses that outsource their telemarketing or use a third party to instigate marketing calls on their behalf must ensure that the third party is complying with all the relevant legislation as part of their due diligence. You should have processes in place to monitor the activities of any third party you contract with. Obtaining assurances from third parties may form part of your due diligence checks but is not sufficient for the purposes of ensuring your compliance alone. We would expect businesses to complete full and ongoing due diligence checks. Businesses who receive leads or referrals (including hot key leads) as a result of noncompliant telemarketing calls will be in breach of this rule. If a third party breaches any legislation, whether under your instruction or not, it may put your authorisation status at risk, or lead to additional conditions being placed on your authorisation. General Rules, Rule 4: A business shall ensure that any staff or other people working on its behalf have the necessary training and competence to perform their duties. If you employ sales staff or the services of a third party to complete your telemarketing you must ensure that they have the necessary training and competence to provide your telemarketing. You should be able to evidence the training you have provided and the monitoring mechanisms in place to ensure that they are not putting you in breach of the conditions of your authorisation. It is insufficient to state that an employee, or third party, is the cause of your non-compliance and enforcement action may still be taken against your business. Content of telesales calls When creating marketing scripts and monitoring your telesales staff you must ensure that the content used in your telemarketing calls is not misleading and that you do not omit required information in order to comply with the following conduct rules. Client Specific Rules, Rule 3: A business must not engage in high pressure selling. There are a number of ways in which you can be deemed to be engaging in high pressure selling. This includes, but is not limited to: persistent calls to a potential client; making telesales calls during unreasonable hours; 4

8 persistent attempts to persuade consumers to claim; using threatening or abusive behaviour; and refusing to remove consumers details from your data list. You must ensure that you monitor your sales staff, the content of your sales calls, identify and avoid any instances of high pressure selling. Client Specific Rules, Rule 6a: In soliciting business through advertising, marketing and other means a business must clearly identify the name of the advertiser. When contacting potential clients using telemarketing you must ensure that you clearly identify the name of your business. If the person you have contacted requests details of your business name and address you must provide your full legal entity name and your principal place of business address. If you use a trading name that is not declared on your application form then you could be deemed to be in breach of this rule. Client Specific Rules, Rule 6d: In soliciting business through advertising, marketing and other means a business must not imply that the business is approved by the Government or is connected with any government agency or any regulator. You must not state that you, your practices or systems, are approved by the Ministry of Justice or the Claims Management Regulator. When making reference to your authorisation you must only use the regulatory statement regulated by the Claims Management Regulator in respect of regulated claims management activities. We are aware of businesses implying that the information that they have obtained or the service that they are providing is in conjunction with the Ministry of Justice. It is a breach of this rule and is misleading. Client Specific Rules, Rule 1c: A business shall ensure that all information given to the client is clear, transparent, fair and not misleading. You must ensure that the content of your marketing scripts provides clear information regarding the service you provide, whether any other business is involved in the provision of the service and the fees involved in making the claim. You must not provide information to potential consumers that is itself misleading, or is misleading due to the omission of material information. Client Specific Rules, Rule 1e: A business shall where advice is given, advise the client to pursue cases only if it is in the interests of the client to do so. If you obtain information during a telesales calls which suggests that making a claim on behalf of a potential client would not be in their best interests you should not advise the client that you could pursue a case. Examples of this would be, but are not limited to; where a client has already contracted with a CMC, they are or have been bankrupt, or they are already progressing their claim themselves. Client Specific Rules, Rule 12: Where a claim is one that falls within the province of the Criminal Injuries Compensation Authority, the Financial Ombudsman Service, the Housing Ombudsman Service or any other recognised dispute resolution procedure, the business must not suggest that a claimant will have a more favourable outcome if he uses the services of the business. During telesales calls you must not state or imply to consumers that if they use your services that they will obtain a quicker outcome, more compensation or any other more favourable outcome rather than completing the claim themselves or with other third parties. Client Specific Rules, Rule 13: A business must make explicit to the client his right to seek further advice or to shop around, subject to any time limits within which a claim must be made. 5

9 During all telemarketing calls you must ensure that you explicitly state to all consumers that they have the right to seek further advice or to shop around. Client Specific Rules, Rule 10: Before seeking to enter into a contract with a client a business must make reasonable enquiries as to whether the client has alternative mechanisms for pursuing a claim and must advise the client unambiguously of ombudsman schemes or other official means of redress. If you intend to contract with clients during your sales call you must ensure that you have obtained sufficient information as to whether they have an alternative mechanism for making the claim prior to the entering into a contract. You must also ensure that you advise your clients of the redress mechanism available to them from the Financial Ombudsman services and that they can pursue the claim themselves. Client Specific Rules, Rule 14: A business must take reasonable steps to ensure that the client is able to understand the contract that he is being asked to agree to. Before contracting with a potential client and after the prescribed information under Client Specific Rule 11 has been provided, you must ensure that you have fulfilled your obligations under this rule to take reasonable steps to ensure that your clients understand the contract they are agreeing to. General Rules, Rule 5: A business shall observe all laws and regulations relevant to its business. You must ensure your compliance with all relevant legislation. Non-compliant telemarketing calls instigated by you or leads received as a result of non-compliant telemarketing is likely to put you in breach of the conduct rules. Client Specific Rules, Rule 11: A contract between a business and a client must be signed by the client and the business may not take any payment from the client until the contract is signed. The standard terms and conditions of any contract must be clear and also published prominently on the business s website (where a business operates a website). The business must provide the client with the following information in writing or electronically before a contract is agreed please see the conduct rules for the full rule, here. Before a contract can be agreed you must provide all the specified information within this rule to your potential clients, in writing or electronically. The contract must be signed by the client and you may only take payment from the client after they have signed the contract. You will be unable to contract with a potential client in an initial telesales call or within the call where the contract is provided. For further guidance about the requirements please see our special bulletin. 6

10 Telephone Preference Service To ensure the compliance of your telemarketing to numbers on the Telephone Preference Service Register the relevant legislation is detailed in this section. The conduct rules require you to ensure that your staff and third parties are compliant when working on your behalf. You should read this section in conjunction with the telemarketing section. Making telesales calls to numbers on the Telephone Preference Service register The following rules and legislation must be considered when using telemarketing to advertise your services. You should be able to demonstrate your compliance if you use third parties to complete Telephone Preference Service (TPS) register screening. Privacy and Electronic Communications (EC Directive) Regulations 2003 PECR provides that you must not make or instigate the making of unsolicited telesales calls to any number listed on the TPS register. You must ensure that you screen the data you intend to use against the TPS register. The TPS register is a statutory list of telephone numbers where the subscriber to that number has registered a general objection to receiving unsolicited marketing calls on that number. A mobile telephone number can also be registered on the TPS register to block unwanted live calls. You may however make or instigate the making of calls to a TPS registered number if they have informed you that, for the time being, they do not object to receiving calls. If you obtain consent with respect to receiving calls this overrides TPS registration but it is only valid if given to a particular caller. The ICO state that if you obtain a third party list of numbers you should make sure that you 7 screen against the TPS register and your own suppression list before making any telesales calls. If you buy or rent a list, regardless of the assurances you have been given, you will still breach the Regulations if you call a number listed on the TPS register. You must ensure that your data is current and up-to-date therefore you should regularly screen your data to ensure that you are not calling numbers that have been subscribed to the TPS register. If a consumer objects to your marketing calls then you must suppress their details as soon as possible. Please note that suppression does not mean delete. Failure to comply with your obligations under PECR would be a breach of General Rule 5 of the conduct rules. For further, more comprehensive guidance with respect to marketing to numbers registered on the TPS, the ICO have created the following TPS guidance. Conduct of Authorised Persons Rules 2013 (2) The Client Specific Rules set out how you must conduct your relationships with clients. The rules must be complied with at all times, and you must be able to demonstrate that you comply with the rules. Client Specific Rules, Rule 4: Cold calling in person is prohibited. Any other cold calling (by telephone, , fax or text) shall be in accordance with the Direct Marketing Association s Direct Marketing Code of Practice.

11 The DMA Direct Marketing Code of Practice Section 21 provides the requirements for telemarketing. It details a number of obligations, which if followed correctly will ensure compliance with the relevant legislation. The Code of Practice states that you must not make unsolicited calls for marketing purposes to individuals (including sole traders and partnerships) where the individual has notified the caller that he does not wish to receive such calls, or where they have registered with the TPS. You must also ensure that you do not use a data list for marketing purposes unless it has been cleansed against TPS files. TPS cleansing should be undertaken a maximum of 28 days prior to the telemarketing call being made. If you require further advice regarding these rules please contact the DMA, please note you may be required to obtain membership to receive advice. The obligations under Client Specific Rule 4 apply to all authorised businesses even if your business is not a DMA member. Staff and third party compliance The following rule outlines your obligations to ensure that your staff or any third party working on your behalf is operating in a compliant manner with all of the relevant rules for contacting TPS registered telephone numbers. General Rules, Rule 4: A business shall ensure that any staff or other people working on its behalf have the necessary training and competence to perform their duties. You must ensure that your telemarketing staff are given the necessary training to deal with TPS complaints, do not call requests and are aware of your in-house suppression process. If you contract with a third party to complete TPS screening against the marketing data you intend to use, you may still be in breach of the regulations if you contact a TPS registered number during your telemarketing campaign. In order for you to be able to demonstrate your compliance and that you have satisfied yourself that the third party has the competence to perform the service, you should be able to evidence the due diligence process that you have completed by producing records that have been created during the process. General Rules, Rule 5: A business shall observe all laws and regulations relevant to its business. Telemarketing to TPS registered numbers that has been instigated by you, or leads received as a result of non-compliant telemarketing to TPS registered numbers, without the relevant consent, is likely to put you in breach of the conditions of your authorisation. 8

12 Use of auto diallers and silent calls If you use auto diallers to assist your telemarketing you must ensure your compliance in respect of the correct use of auto diallers, the maintenance of records you are required to keep and the action you should take to avoid breaches of relevant legislation. For further advice with respect to your obligations under the Communications Act 2003 you should contact Ofcom. Use of auto diallers When using auto diallers there are a number of requirements that you must comply with to ensure that you use the equipment correctly and are not deemed to be persistently misusing the systems. Communications Act 2003 The Communications Act 2003 and its relevant guidelines set out the requirements for businesses that use Automated Calling Systems and Answer Machine Detection equipment. If you use automated dialling equipment you must ensure that you comply with Ofcom s Revised statement of policy on the persistent misuse of an electronic communications network or service This includes compliance with rules governing abandoned call rates, taking into consideration the estimate of answer machine detect (AMD) false positives. Failure to do so may put you in breach of the persistent misuse provisions of the Act. If your business uses an Automated Calling System you must ensure your abandoned call rate does not exceed 3% of live calls per campaign. When an abandoned call (other than an AMD false positive), has been made to a particular number, any repeat calls to that number in the following 72 hours may only be made with the guaranteed presence of a live operator. Similarly where a call has been identified AMD equipment as being picked up by an answer machine (including AMD false positives), any further calls to that number, within a 24 hour period, may only be made with the guaranteed presence of a live operator. In the event of an abandoned call you must ensure you play an automated message which complies with Ofcom s guidelines. For each outbound call you must provide a valid calling-line identification number to which a return call may be made, and which satisfies the Ofcom Guide to the use of Presentation Numbers. Ofcom has powers under the Communications Act 2003 to take enforcement action where it has reasonable grounds for believing that a person has persistently misused an electronic communications network or service. The maximum penalty that can be issued to companies found to be persistently misusing a network or service is 2 million. Ofcom has recently issued guidance with respect to how it expects businesses to ensure their compliance with the guidelines. The content of the guidance can be found using the following link; uk/binaries/consultations/silentcalls/annexes/ Open_letter_to_stakeholders.pdf. 9

13 Failure to comply with your obligations under the Communications Act 2003 would be a breach of General Rule 5 of the conduct rules. Conduct of Authorised Persons Rules 2013 (2) The Client Specific Rules set out how you must conduct your relationships with clients. The rules must be complied with at all times, and you must be able to demonstrate that you comply with the rules. Client Specific Rules, Rule 4: Cold calling in person is prohibited. Any other cold calling (by telephone, , fax or text) shall be in accordance with the Direct Marketing Association s Direct Marketing Code of Practice. The DMA Direct Marketing Code of Practice Section 21 provides the requirements for telemarketing. It details a number of obligations, which if followed correctly will ensure compliance with the relevant legislation. If you use automated dialling equipment (i.e. predictive diallers, auto diallers, adaptive diallers and automatic diallers, to name a few) you must ensure that you comply with the accepted abandoned call rate, taking into consideration the estimate of answer machine detect (AMD) false positives. The dialling equipment must be adjusted to ensure the rate of abandoned calls is no more than 3% of live calls per campaign. If your AMD detects a call answered by an answering machine any repeat calls within 24 hours must only be made with the guaranteed presence of a live operator. All businesses that use an automated dialler must ensure that they maintain an up-to-date archive of dialler statistics to demonstrate compliance. Detailed records of dialler statistics must be retained for a minimum of 6 months. Summary records must be retained for 24 months and they must be available for inspection on reasonable notice. If you require further advice regarding these rules please contact the DMA, please note you may be required to obtain membership to receive advice. The obligations under Client Specific Rule 4 apply to all authorised businesses even if your business is not a DMA member. Staff and third party compliance If you outsource your telemarketing to a third party call centre, you must ensure that they comply with all of the requirements relating to the use of auto diallers. The following rules create the responsibility for you to monitor their activity and a breach of the conduct rules if you fail to do so. Client Specific Rules, Rule 9: A business must seek to ensure that any publicity for its services issued by a third party and which is intended to solicit business for it complies with these rules. If you outsource your telemarketing to a third party that uses automated dialling equipment, you must ensure that they are complying with all the relevant legislation as part of your due diligence. You will be required to ensure their compliance and maintain an effective compliance strategy that should include a process of ongoing monitoring and assessment. If the third party breaches any legislation under your instruction it may put your authorisation status at risk, or lead to additional conditions being placed on your authorisation. General Rules, Rule 4: A business shall ensure that any staff or other people working on its behalf have the necessary training and competence to perform their duties. You must ensure that you have sufficient training mechanisms and trained staff in place for the operation of the automated dialling equipment to ensure that you comply with the requirements of the Communications Act 10

14 2003. You will be held responsible if you do not monitor the equipment and ensure your compliance in respect of your abandoned call rate and the subsequent calls to specific numbers. General Rules, Rule 5: A business shall observe all laws and regulations relevant to its business If you fail to ensure the compliance of your Automatic Calling Systems and Answer Machine Detection equipment it is likely to put you in breach of the conditions of your authorisation. 11

15 Automated message telemarketing To ensure the compliance of the use of automated messages or voice broadcasting the conduct rules and other relevant legislation are detailed in this section. They provide the requirements for the consent to be obtained and required content that you should provide. The rules also create an obligation to ensure the compliance of data, leads or referrals received as a result of this type of marketing. Use of automated messages The following rules and legislation detail the requirements to be complied with when using automated messages to market regulated claims management services. Privacy and Electronic Communications (EC Directive) Regulations 2003 PECR sets out the rules that govern electronic marketing, which includes automated message marketing. Marketing material may be transmitted by such a system only with the prior consent of a subscriber. This means the subscriber must have told the caller that they consent, for the time being, to the caller making or instigating such communications to be sent on that line. All marketing messages sent by this method of communication must include the identity of the caller and a contact address or freephone number. The ICO state that even if you provide the opportunity for a consumer to talk to a live person at some point in the message, for example, to speak to a live operator, press 1, such a call would still be covered by the prior consent rule. Should you require further information about your obligations under PECR, please contact the ICO For ICO guidance in respect to automated messages, click here. Conduct of Authorised Persons Rules 2013 (2) The Client Specific Rules set out how authorised businesses must conduct their relationships with clients. The rules must be complied with at all times, and a business must be able to demonstrate that it complies with the rules. Client Specific Rules, Rule 4: Cold calling in person is prohibited. Any other cold calling (by telephone, , fax or text) shall be in accordance with the Direct Marketing Association s Direct Marketing Code of Practice. The Direct Marketing Association s Direct Marketing Code of Practice Section 21 provides the details of the obligations that are created under the PECR when using marketing messages of this kind. Members intending to initiate outbound calls involving the use of an automated calling system (i.e. a system which, when activated, operates to make calls without human intervention) must have obtained the prior consent of the person being called, whether they are an individual or another business. 12

16 The obligations under Client Specific Rule 4 apply to all authorised businesses even if your business is not a DMA member. Content of automated messages In addition to the requirements under PECR, the following conduct rule applies to the content that is required when using automated messages and any subsequent contact. Client Specific Rules, Rule 6a: In soliciting business through advertising, marketing and other means a business must clearly identify the name of the advertiser. When using an automated marketing message you must ensure that you clearly identify your business during the automated message. If you use a trading name that is not declared on your application form then you could be deemed to be in breach of this rule. In addition, any subsequent live marketing call as a result of a response to the automated message, you must clearly identify your business to the person that you have contacted. Third party compliance If you outsource your marketing or obtain leads from third parties as a result of this marketing you must comply with the conduct rule below. Client Specific Rules, Rule 9: A business must seek to ensure that any publicity for its services issued by a third party and which is intended to solicit business for it complies with these rules. If you outsource the instigation of automated messages to market your services you must ensure that the third party is complying with all the relevant legislation as part of your due diligence. If a third party breaches any legislation under your instruction you will be deemed to be in breach of the rules as you will be responsible for their actions and it may put your authorisation status at risk, or lead to additional conditions being placed on your authorisation. If you obtain hot key leads or potential claims as a result of automated messaging you must ensure that the messaging has been completed in compliance with the relevant legislation. If it is not then this will, in turn, place you in breach of your conditions of authorisation. When receiving data and leads from third parties you must be able to demonstrate that the potential client has agreed for their details to be passed to you. General Rules, Rule 5: A business shall observe all laws and regulations relevant to its business. Telemarketing using automated messages that has been instigated by you, or leads received as a result of this type of marketing, without the relevant consent, is likely to put you in breach of the conditions of your authorisation. 13

17 SMS marketing To ensure the compliance of the use of automated messages or voice broadcasting the conduct rules and other relevant legislation are detailed in this section. They provide the requirements for the consent to be obtained and required content that you should provide. The rules also create an obligation to ensure the compliance of data, leads or referrals received as a result of this type of marketing. Sending SMS messages When sending text messages for marketing claims management activity you will need to ensure your compliance with the following rules and legislation. Privacy and Electronic Communications (EC Directive) Regulations 2003 PECR sets out the rules that govern electronic marketing, which includes SMS marketing. On 2 July 2012 the Information Commissioner s Office issued a statement detailing their powers to issue monetary penalties up to 500,000 to businesses who do not comply with the requirements of PECR, which can be found here. You cannot use, or instruct a third party to use, unsolicited SMS marketing to promote your services to potential clients unless: You have their prior consent to receiving such communications; or You have obtained their details in the course of a sale or negotiations of a sale, you have only contacted them about your own similar products or services and you have given them the opportunity to opt out of receiving further marketing messages each time. It is possible to purchase third party data for the instigation or instructing the instigation of SMS marketing. However you must ensure that the third party has obtained the relevant consent before contacting any potential clients. Failure to comply with PECR would be a breach of General Rule 5 of the Conduct of Authorised Persons Rules 2013 (2). For further, more comprehensive PECR guidance, the ICO have issued guidance on electronic mail, which includes a good practice note. Conduct of Authorised Persons Rules 2013 (2) The Client Specific Rules set out how authorised businesses must conduct their relationships with clients. The rules must be complied with at all times and you must be able to demonstrate that you comply with the rules. Client Specific Rules, Rule 4: Cold calling in person is prohibited. Any other cold calling (by telephone, , fax or text) shall be in accordance with the Direct Marketing Association s Direct Marketing Code of Practice. The Direct Marketing Association s Direct Marketing Code of Practice Section 20 states that businesses must not send or instigate the sending of random, untargeted, commercial communications via mobile text to individuals. It also provides that an individual must give proactive consent to their mobile telephone number being passed to third parties. If you wish to use this type of opt in the onus is on you to ensure that proactive consent has been obtained. When using SMS marketing you must indicate where the recipient can obtain the full organisation name, principal place of business or 14

18 registered office address, company registration details, address and terrestrial telephone number, from the business free of charge (i.e. a website address). Content of SMS messages When marketing using SMS messages you must ensure that the content is not misleading and that you do not omit required information in order to comply with the following conduct rules. Client Specific Rules, Rule 6a: In soliciting business through advertising, marketing and other means a business must clearly identify the name of the advertiser. We receive a large number of complaints relating to the receipt of unsolicited SMS marketing where businesses are not identifying the name of the advertiser. This is a breach of Client Specific Rule 6a. In addition it is a breach of PECR as a business must not send electronic marketing (whether it is unsolicited or not) where the identity of the sender has been disguised or concealed. SMS marketing must display the full name of the business or a recognised abbreviation, which must be declared to the Regulator as a trading name. Client Specific Rules, Rule 2: All advertising, marketing and other soliciting of business must conform to the relevant code the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) and the UK Code of Broadcast Advertising (BCAP Code) The following sections of the CAP Code are of particular relevance: Section 1 Compliance: Rule 1.1 Marketing communications should be legal, decent, honest and truthful. Section 2 Recognition of marketing communications: Rule 2.1 Marketing communications must be obviously identifiable as such. Section 3 Misleading advertising: Rule 3.1 Marketing communications must not materially mislead or be likely to do so Rule 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. Rule 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. The Advertising Standards Authority is the body that adjudicates on breaches of the CAP Code. They have published a number of adjudications about the sending of unsolicited SMS messages. The use of marketing content such as: FREEMSG: Our records indicate you may be entitled to 3750 pounds for your Accident. To claim for free reply with YES to this msg. To opt out text STOP. and IMPORTANT - You could be entitled up to 4856 in compensation from mis-sold PPI on credit cards or loans. Please reply PPI for info or STOP to opt out. 15

19 is likely to be misleading if consumers are not entitled to claim the stated amount. All businesses are reminded to ensure that all of their marketing is not misleading in content. Section 10 of the CAP Code relates to database practice; it should be read in conjunction with data protection legislation. It details the rules that relate to databases used for direct marketing purposes. A copy can be found here. Data and third party compliance The following conduct rule requires you to ensure that any third parties working on your behalf are operating in a compliant manner with all of the relevant rules for using SMS messages to market your services or obtain leads as a result of potential clients responding to a marketing SMS message. Client Specific Rules, Rule 9: A business must seek to ensure that any publicity for its services issued by a third party and which is intended to solicit business for it complies with these rules. If you receive data, leads or referrals as a result of non-compliant and unsolicited SMS messages you will be in breach of this rule. Even if a potential client has responded to the message this does not mean that they have opted in to receive communications from you. Businesses that use a third party to send SMS messages on their behalf must ensure that the third party is complying with all the relevant legislation as part of their due diligence. If a third party breaches any legislation under your instruction it may put your authorisation status at risk, or lead to additional conditions being placed on your authorisation. General Rules, Rule 5: A business shall observe all laws and regulations relevant to its business. Non-compliant SMS marketing instigated by you or leads received as a result of non-compliant SMS marketing is likely to put you in breach of the conditions of your authorisation. 16

20 marketing To ensure the compliance of the use of marketing the conduct rules and other relevant legislation are detailed in this section. They provide the requirements for the consent that must be obtained and the content that must be contained in the messages. They also create the requirement to ensure that staff and third parties are complying with the rules and legislation when using marketing on your behalf or referring leads to you as a result of marketing. Sending messages When sending messages to market regulated claims management services you will need to ensure that you comply with the following conduct rules and legislation. Privacy and Electronic Communications (EC Directive) Regulations 2003 PECR sets out the rules that govern electronic marketing, which includes marketing. When using messages to market for regulated claims management activities, you must not conceal your identity; and provide a valid address for opt-out requests. You cannot send such messages unless you have obtained prior consent to do so. This strict opt-in rule does not apply if three exemption criteria are satisfied. These are: the address was collected in the course of a sale or negotiations for a sale ; the sender only sends promotional messages relating to their similar products and services ; and when the address was collected, an opportunity to opt out (free of charge except for the cost of transmission) was provided that was not used. The opportunity to opt-out must be given with every subsequent message. 17 This rule only applies where you have collected an address directly from a subscriber and used it to market your own similar product and services. For further information with respect to marketing please contact the ICO or see the following guidance. Electronic Commerce (EC Directive) Regulations 2002 The Electronic Commerce (EC Directive) Regulations 2002 (E-commerce Regulations) set out the rules with respect to the content required for marketing. Regulation 7: A service provider shall ensure that any commercial communication provided by him and which constitutes or forms part of an information society service shall - (a) be clearly identifiable as a commercial communication; (b) clearly identify the person on whose behalf the commercial communication is made; Regulation 8: A service provider shall ensure that any unsolicited commercial communication sent by him by electronic mail is clearly and unambiguously identifiable as such as soon as it is received. Conduct of Authorised Persons Rules 2013 (2) The Client Specific Rules set out how authorised businesses must conduct their relationships with

21 clients. The rules must be complied with at all times and you must be able to demonstrate that you comply with the rules. Client Specific Rules, Rule 4: Cold calling in person is prohibited. Any other cold calling (by telephone, , fax or text) shall be in accordance with the Direct Marketing Association s Direct Marketing Code of Practice. Section 14 of the Direct Marketing Association s Direct Marketing Code of Practice covers the obligations under PECR for marketing. When collecting addresses for your own marketing purposes and to pass on to third parties, you should provide a separate opt-in mechanism for third party marketing, so that the customer is clear as to what they are consenting to receive. Commercial communications sent by , whether solicited or unsolicited, must be clearly identifiable as such to the recipient at the time of receipt of the communication. When marketing by you must operate and maintain an in-house suppression file, listing recipients who have indicated that they do not wish to receive further commercial communications via . Your lists must always be cleansed against this prior to the sending of an campaign. Section 19 details businesses obligations under E-Commerce Regulations for marketing. Online commercial communications are any commercial communications, including advertisements and offers for goods and services, which take place on-line through any digital channel including but not limited to search engine marketing (PPC), search engine optimisation, online advertising (banner ads), , an organisation s website, mobile marketing (SMS, MMS, WAP, wireless application protocol (WAP), Applications etc.), data storage devices or interactive kiosks. If the directs recipients to a related website, the provisions in Section 19 (On- Line Commercial Communications) must be complied with. If you require further advice regarding these rules please contact the DMA uk. Please note you may be required to obtain membership to receive advice. The obligations under Client Specific Rule 4 apply to all authorised businesses even if your business is not a DMA member. Content of messages There is specific information that must be provided when sending marketing which has been detailed in the previous section. The following conduct rules detail the content of the advertising within your marketing. Any statements that you use must not be misleading. Client Specific Rules, Rule 2: All advertising, marketing and other soliciting of business must conform to the relevant code the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) and the UK Code of Broadcast Advertising (BCAP Code). The following sections of the UK Code of Non- Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) are of particular relevance: Section 1 Compliance: Rule 1.1 Marketing communications should be legal, decent, honest and truthful. Section 2 Recognition of marketing communications: Rule 2.1 Marketing communications must be obviously identifiable as such 18

22 Rule 2.2 Unsolicited marketing communications must be obviously identifiable as marketing communications without the need to open them. Section 3 Misleading advertising: Rule 3.1 Marketing communications must not materially mislead or be likely to do so Rule 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. Rule 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The Advertising Standards Authority may regard claims as misleading in the absence of adequate substantiation. Examples of potentially misleading statements identified by the Claims Management Regulator include (but are not limited to): Unjustified claims about success rates Exaggerating the complexity of claiming compensation directly or the proportion of cases that fail when people claim directly Exaggerating the qualifications and/ or experience of staff Exaggerating the size of the business, or how long it has been trading Exaggerating how quickly a client can expect to receive compensation Misleading information about the amount of time the consumer has to claim If you use testimonials in your marketing you must ensure that you comply with Rules 3.45, 3.46, 3.47 and These rules require you to hold documentary evidence that a testimonial or endorsement is genuine and that you hold contact details for the person who has given it. The testimonial must relate the product you are advertising and it must not mislead or be likely to mislead consumers. You must not use a testimonial without permission. Client Specific Rules, Rule 6a: In soliciting business through advertising, marketing and other means a business must clearly identify the name of the advertiser. The name of your business must be disclosed in all forms of advertising and marketing, including marketing. If you use a trading name that is not declared on your application form then you could be deemed to be in breach of this rule. Client Specific Rules, Rule 6b: In soliciting business through advertising, marketing and other means a business must not offer any cash payment or a similar benefit as an inducement for making a claim. You must not offer any payments to clients for making a claim. In addition paying clients for a personal injury claim may put you in breach of the Legal Aid, Sentencing and Punishment of Offenders Act Client Specific Rules, Rule 6c: In soliciting business through advertising, marketing and other means a business must not promote the idea that it is appropriate that compensation may be used in a way that is not consistent with the cause of the claim. In soliciting business through advertising, marketing and other means a business must not promote the idea that it is appropriate that compensation may be used in a way that is not consistent with the cause of the claim. For example, statements such as Treat yourself to a holiday are prohibited. Client Specific Rules, Rule 6d: In soliciting business through advertising, marketing and other means a business must not imply that the 19

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