Marketing industry faces new rules on data

The Committee of Advertising Practice (CAP) recently published changes to its CAP Code. These changes were in response to a recent consultation, to ensure the code was aligned with the GDPR and covered data protection issues most relevant to marketing practices.
What were the rules before the GDPR?

The Consultation concerned two sets of rules:

  1. Section 10: This section regulated database practice and the use of data for direct marketing.
  2. Appendix 3: This appendix regulated online behavioural advertising and included rules concerning transparency and the use of data gathered for the purpose of generating adverts tailored to the browsing behaviour of individuals.

When the GDPR took effect on 25 May 2018, the CAP suspended these rules until the consultation was completed.

The Consultation

Prior to the public consultation, CAP carried out an informal pre-consultation with the Information Commissioner’s Office (the ICO). During this exercise, the ICO expressed that CAP’s self-regulatory approach to the marketing aspects of data protection worked particularly well in conjunction with the ICO’s regime.

The Consultation contained three proposals:

  1. Removal of the Section 10 rules relating to “pure data protection matters” principally because “these rules are unlikely to attract an expectation of regulation by the UK’s advertising regulator”.
  2. Amendment of the Section 10 rules relating to marketing matters to ensure that they are compliant with the standards contained within the GDPR.
  3. Removal of Appendix 3 and a proposal that online behavioural advertising matters be regulated under an updated version of Section 10.
What were the changes?

The rules that purely concern data protection matters have been removed from Section 10. Further, terms such as “consent” and “personal data” have been defined. Appendix 3 has been removed and online behavioural advertising rules are now contained in an amended Section 10.

The new rules will be reviewed in 12 months’ time, and for the first six months it is understood that the ASA is likely to deal with matters informally. However formal action may be taken where a formal ruling is in the public’s and the sector’s interest. The CAP and the ASA will also use the Direct Marketing Commission to provide advice in cases involving “legitimate interests” and related matters.

Children and prize winning

The CAP is undertaking a further consultation on issues relating to marketing to children and the publication of prize-winners’ names. In respect of the latter, the requirement to publish the names of prize-winners in terms of rule 8.28.5 of the CAP Code is not currently being enforced. Further changes to the CAP Code may follow in due course. In the meantime Advertisers should ensure that their practices remain compliant with the updated CAP Code.

This article was co-written by Charlotte Fleming.


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