Freelance marketers increasingly need data law nous to avoid falling foul

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In the worlds of both freelancers who are self-employed marketers, and start-up individuals marketing their own business, staying abreast of legal matters is crucial to ensure tomorrow’s promo isn’t going to land them on hot water, writes Mel Hzeg of Gerrish Legal.

Well, only very recently, the Information Commissioner's Office (ICO) made a significant ruling that resulted in fines against two businesses for making unlawful marketing calls.

Let’s delve into the facts of the case and discuss the outcome. But I’ll also touch on something potentially even bigger for creatives, techies and marketers -- the latest developments involving the efforts of Facebook owner Meta to address concerns raised by the Competition and Markets Authority (CMA).

ICO Sanctions on Ice Telecommunications and UKDBS

The ICO recently penalised Ice Telecommunications and UKDBS for engaging in unlawful marketing calls. These calls were in violation of regulations and guidelines set by the ICO to protect individuals' privacy and prevent unsolicited communications.

Complaints suggested that these companies were calling a couple of times per week for a period of five months, while ignoring requests to be removed from the calling list.

£180,000 in fines suggests the ICO has got teeth and isn’t afraid to bite

The fines imposed by the ICO for these activities amounted to a total of £80,000 for Ice Telecommunications and £100,000 for UKDBS. Not small change.

So, this case serves as a reminder of the importance of complying with marketing regulations and respecting individuals' preferences when it comes to receiving marketing communications. Failure from any business to do so could be in effect signing up for a hefty fine, potentially bigger than smaller marketing operators could muster up.

Outcome and implications for freelancers

As a result of the ICO's ruling, the fined businesses are not only facing financial penalties but also reputational damage.

This serves as a cautionary tale for all freelancers and start-ups engaged in marketing activities. Compliance with data protection, regulations and obtaining proper consent from individuals is paramount to avoid legal consequences.

Andy Curry, ICO’s head of investigations, reminded businesses across the UK that “the fact that a number is in the public domain does not give free rein to marketers to make calls to businesses.”

Curry added: “The law is clear. Before any marketing calls are made, numbers must be screened against the ‘do not call’ Register.”

Meta versus CMA

In a related development, Meta, the tech giant behind various platforms, including Facebook and Instagram, has taken steps to address concerns raised by the Competition and Markets Authority (CMA) regarding the use of ad data by other businesses.

Meta is the largest supplier of digital display advertising in the UK and holds a significant amount of data on its users across its various platforms.

Advertisers value Meta's extensive reach and granular data, making it an essential advertising channel.

However, concerns were raised that Meta was utilising ad data to gain a competitive advantage over its advertising customers.

In response to this, Meta has offered limitations on the use of ad data, seemingly demonstrating a commitment to addressing competition concerns and ensure fair practices in the digital advertising landscape.

In response to the CMA's investigation, Meta has proposed commitments aimed at addressing the competition concerns. These commitments include:

1. Limiting the use of ad data

Meta will ensure that its employees working on product development do not use ad data to improve Meta's products in competition with advertisers in the UK.

2. Transparency and clarity

Meta will publish a clear public statement in its code of conduct, explicitly stating that ad data should not be used to develop or improve products. This provides greater transparency for businesses and individuals using Meta's advertising services.

3. Opt-out mechanism

Meta will offer advertisers the ability to opt out of their ad data being used to develop or improve Facebook Marketplace. Technical systems will be implemented to prevent the use of data from advertisers who have opted out.

4. Oversight and compliance

A monitoring trustee will be appointed to oversee the implementation of technical changes and training. They will report any failures and provide compliance reports to the CMA.

Reassurance, reliance, and even an upside?

The commitments offered by Meta offer reassurance to freelancers and marketers in the UK. By limiting the use of ad data and providing an opt-out mechanism, Meta aims to protect the interests of businesses that advertise on its platform.

This is particularly relevant for freelancers and marketers who heavily rely on Meta's advertising services to reach their target audience. With these commitments in place, freelancers can have more confidence that their ad data will not be exploited to their disadvantage, enhancing fair competition in the market.

The proposed commitments from Meta could also present new opportunities for freelancers and marketers. By ensuring that advertising data is not unfairly utilised against businesses, Meta may foster an environment where freelancers and marketers can thrive without the fear of their ideas or strategies being exploited by the platform. This may encourage more businesses, including small and medium-sized enterprises, to continue using Meta's advertising services, creating a larger customer base and potentially leading to increased job opportunities for freelancers and marketers.

What Meta’s concessions, and the ICO’s penalties, mean for freelancers

The ICO case against Ice Telecommunications and UKDBS, along with Meta's response to concerns raised by the CMA, highlight important legal trends that freelance marketers need to be aware of.

The hefty fines show the financial and reputational risks that marketers face when they fail to comply with marketing regulations, fail to protect individuals' preferences, and infringe on data privacy.

However, the Meta commitment proposals also give light at the end of the ‘compliance tunnel,’ by giving marketers more confidence that their ad data will not be unfairly exploited, presenting new opportunities for growth and job prospects in the market.

The commitments of limitations on the use of ad data, transparency and clarity, an opt-out mechanism, and oversight and compliance measures, aim to protect businesses' interests and foster fair competition.

Final thoughts

The timing of both the ICO fines and the Meta statement is not a coincidence, as entities across the board, whether it be governments or companies, are beginning to take data protection seriously, meaning it is natural that there will be an acceleration of new regulations, fines and adaptation strategies by companies.

For this reason, freelance marketers should prioritise staying updated on legal developments and regulatory guidelines. They should invest time and resources in understanding and complying with data protection regulations and industry best practices. By doing so, they can protect their businesses, maintain trust with their customers, and take advantage of platforms like Meta while minimising potential risks.

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