Texts, emails and phone calls offering quick loans are a common irritation for people who have searched for credit. The Privacy and Electronic Communications Regulations 2003 (PECR) set rules for electronic marketing, and the Information Commissioner’s Office (ICO) publishes guidance on them for organisations across the UK. This guide summarises what that guidance says about marketing to individuals. The ICO notes that its guidance is under review following the Data (Use and Access) Act, so details may change. It is general information, not legal advice.
Two sets of rules: financial promotions and PECR
Whether a loan advert is accurate and fair is a matter for the FCA, covered in this site’s guide to credit adverts and financial promotions. Whether a marketer may contact a person by text, email or phone at all is a separate question, governed by PECR. The ICO’s guidance on electronic mail marketing says the rules on electronic mail are in regulation 22 and that marketing to individuals is not allowed without their consent, apart from a limited exception for existing customers.
Texts and emails: consent or the soft opt-in
According to the ICO, a marketer must not send electronic mail marketing to individuals unless they have specifically consented, or they are an existing customer who bought, or negotiated to buy, a similar product or service in the past and was given a simple way to opt out both when the details were first collected and in every message. The sender must not disguise or conceal its identity, and must provide a valid contact address so the recipient can opt out.
The same rule applies to emails, texts, picture and video messages, voicemails and direct messages on social media. The ICO calls the existing-customer exception the “soft opt-in”. It says the exception does not apply to prospective customers or new contacts, such as those from bought-in lists, and that there is no text or email equivalent of the Telephone Preference Service.
Consent has to be specific
The ICO gives an opt-in box as an example of specific consent. The soft opt-in covers only the business the person bought from, or negotiated with, and messages about similar products. The FCA rules for brokers are explained in the guide to credit brokers and comparison sites.
Live marketing calls
The ICO’s guidance on telephone marketing says the rules on live marketing calls are in regulations 21, 21A and 21B. A marketer must not make unsolicited live calls to anyone who has said they do not want the calls, or to any number registered with the Telephone Preference Service (TPS) or the Corporate TPS, unless the person has specifically consented, even if they are an existing customer. The caller must say who is calling, allow the number or an alternative contact number to be displayed, and provide a contact address or freephone number on request.
The TPS is a central register of individuals who have opted out of live marketing calls. Calls to a number not on the register are permitted only if the person has not previously objected and the call is not marketing claims management services. In practice, marketers therefore need to screen call lists against the register and keep their own do-not-call list.
Automated calls
Automated calls are covered by regulation 19, and the ICO describes the rules as stricter. An automated marketing call, one made by an automated dialling system that plays a recorded message, is not allowed unless the person has specifically consented to that type of call. General marketing consent, or consent to live calls, is not enough. Each automated call must include the marketer’s name and a contact address or freephone number, and the number must be displayed.
Claims management and debt-related calls
The ICO says unsolicited live calls are not allowed for the purpose of claims management services unless the person has specifically consented. The fees of such firms are described in the guide to claims management companies. Pension scheme marketing calls are also tightly restricted, according to the guidance.
If the contact looks like a scam
A message that asks for an upfront fee before a loan is released may be a fraud rather than a marketing breach; see the guide to loan fee fraud for how to check a lender.
FAQs
Can a lender text me if I applied for a loan with them once?
The ICO says the soft opt-in can apply to an existing customer who bought, or negotiated to buy, a similar product, provided they were offered a clear opt-out when their details were collected and in every message.
Is there a register to stop unwanted texts?
The ICO says there is no text or email equivalent of the TPS. The TPS covers live marketing calls.
Can a company use a recorded-message marketing call?
Only if the person has specifically consented to automated calls, according to the ICO; general marketing consent is not enough.
Can a company phone me about claiming back on a loan?
The ICO says unsolicited live calls for claims management services are not allowed unless the person has specifically consented.
The bottom line
PECR requires marketers to have specific consent before sending texts or emails to individuals, with a narrow soft opt-in for existing customers, and to screen live marketing calls against the TPS. Automated calls need consent that specifically covers them, and claims management calls need specific consent as well. The ICO’s guidance is under review, so the current position on the ICO’s website should be checked when relying on any detail.