With effect from 17 December 2018, company directors and officers will be personally liable for fines of up to £500,000 for breaches of the rules on automated calling systems and unsolicited direct marketing. Liability will apply where an individual has consented to, or connived in, the breach or if the breach is attributable to their neglect.

The Information Commissioner has been keen to introduce personal liability for direct marketing breaches for some time but the issue has been overshadowed by the coming into effect of the General Data Protection Regulation in May of this year. Although the Information Commissioner has imposed numerous fines for marketing breaches in recent years, she has admitted her frustration at the high number of companies which avoid fines by dissolving and then remerging under a new name (a process known as phoenixing).

The introduction of personal liability for company directors and officers will effectively close down this avoidance tactic and is likely to act as a real incentive for companies to fully engage with the complex rules applicable to direct marketing.

The fines will be brought under the Privacy and Electronic (EC Directive) Regulations 2003 (PECR), a piece of legislation that sits alongside the General Data Protection Regulation and specifically covers direct marketing. PECR specifies the type of marketing communications for which consent is required and details the “soft opt in” requirements applicable when sending marketing communications to existing customers. Application of the rules is complex and fact specific with full compliance depending heavily upon understanding how and when contact details and consents were originally acquired.

Birketts has a well-established reputation for its work around marketing compliance, having partnered with the Institute of Fundraising to create and deliver training on the issue to hundreds of charities as well as advising numerous private companies in the UK and overseas. Birketts has produced a specific training session for marketing teams using case studies to demonstrate the application of the rules in practice.

For enquires about our training or advice in respect of the marketing rules, please contact Kitty Rosser on +44 (0)1603 756559. 

The content of this article is for general information only. Law covered as at November 2018.