November 13, 2018

Following public consultation, CAP is introducing new rules on the use of data for marketing. CAP says that the changes are intended to ensure that its rules cover data protection issues most relevant to marketing, and that they align with the standards introduced by the GDPR.

Until 25 May 2018, CAP’s regulation of data protection issues was carried out under two sets of rules: Section 10 (Database practice) and Appendix 3 (Online behavioural advertising). Section 10 regulated the use of data for direct marketing generally, while Appendix 3 included rules on the transparency and control of data collected and used for the purpose of delivering ads based on web users’ browsing behaviour.

CAP consulted on:

• proposals for the removal of Section 10 rules relating to “pure data protection matters” on the basis that these rules are unlikely to attract an expectation of regulation by the UK’s advertising regulator;
• proposals for the amendment of marketing-related Section 10 rules (and definitions) to ensure that they are aligned with the GDPR; and
• a proposal to remove Appendix 3 (Online behavioural advertising (OBA)) of the CAP Code and to regulate OBA under an updated section 10.

CAP received six responses to the consultation. After careful consideration, the regulator decided to remove rules covering “pure data protection matters”, but retain Section 10 rules that are likely to attract an expectation of regulation by the UK’s advertising regulator. It also decided to remove Appendix 3 (OBA) from the Code.

The new Section 10 rules will take effect immediately and will be subject to a 12-month review. In the first six months following the rules taking effect, the ASA is likely to deal with matters informally, but reserves the right to tackle some cases formally where it believes, having consulted with relevant bodies, that a formal ruling is in the public’s and the sector’s interest.

CAP and the ASA will use the Direct Marketing Commission, an independent industry watchdog, as a Panel to provide advice in cases involving “legitimate interests” and related matters.

CAP has also announced a further consultation on matters that have arisen during the current consultation in two areas: marketing to children, and publication of prize-winners’ names (see item below). To read CAP’s news release in full and for a link to its Regulatory Statement, click here.