ICC International Code of Direct Marketing
Commission on Marketing, Advertising and Distribution, June 2001

French version

Introduction

This edition of the ICC International Code of Direct Marketing Practice follows the well-established policy of the ICC of promoting high standards of ethics in marketing via self-regulatory codes intended to complement the existing frameworks of national and international law.

Like its predecessor, the 1978 Code of Direct Mail, this Code, which was first issued in 1992, is an expression of the business community's recognition of its social responsibilities in respect of commercial activities and communications. The globalization of the world's economies, and the intense competition that ensues therefrom, require the international business community to adopt standard rules. The adoption of these self-disciplinary rules is the best way that business leaders have of demonstrating that they are motivated by a sense of social responsibility, particularly in light of the increased liberalization of markets and the emergence of new media.

This edition combines past experience with current thinking based on the concept of direct marketing as a key factor in competition and communication, essential to the market economy. In the view of the ICC, the Code establishes a fair balance between the interests of all parties concerned - producers, distributors and consumers. The ICC considers it to be fundamental and in the interest of society as a whole that business, while observing the principles of fair competition, should be free to choose between different marketing methods.

The Code is designed primarily as an instrument for self-discipline, but it is also intended for use by legal or administrative bodies as a reference document within the framework of applicable laws.

The ICC believes that this new edition of the Code will promote adherence to high standards of direct marketing practice. Being a pointer to the direction of further international harmonization, it will facilitate the free flow of products across frontiers, leading to efficient markets and significant consumer benefits.

Scope of the code

The Code applies to all direct marketing activities in their entirety, whatever their form, medium or content. It should be read in conjunction with the other ICC Codes of Marketing Practice, namely the:

• ICC International Code of Advertising Practice
• ICC International Code on Environmental Advertising
• ICC International Code of Sales Promotion
• ICC International Code on Sponsorship
• ICC/ESOMAR International Code of Marketing and Social Research Practice
• ICC Guidelines on Advertising and Marketing on the Internet
• ICC International Code of Direct Selling

The Code sets standards of ethical conduct to be followed by all concerned with direct marketing, whether as marketers or sellers, distributors, practitioners or other contractors providing services for direct marketing purposes, or media, and is to be applied against the background of the applicable law.

Interpretation

The Code is to be applied in the spirit as well as in the letter, bearing in mind the different degrees of knowledge, experience and discriminatory ability of those to whom direct marketing activities are directed.

Definitions

For the purposes of this Code, direct marketing comprises all communication activities with the intention of offering goods or services or transmitting commercial messages presented in any medium aimed at informing and/or soliciting a response from the addressee, as well as any service directly related thereto.

• The term consumer refers to any person to whom direct marketing is addressed or who can reasonably be expected to be reached by it;
• The term data controller means the person or body responsible for the contents and/or use of the marketing file;
• The term data subject means any identified or identifiable natural person;
• The term Internet refers to the public network of computer networks which enables the transmission of information between users, or between users and a place on the network, as well as to all interactive media and electronic networks;
• The term marketing list means a data base created or used for direct marketing purposes;
• The term offer means any presentation or solicitation of goods or services;
• The term operator refers to any person, firm or company other than the seller that provides a direct marketing service for and on behalf of the seller;
• The term personal data means any information relating to an identified or identifiable individual;
• The term predictive dialler means an automated dialler which will adjust the rate at which it dials and deliver answered telephone calls immediately to match operator availability;
• The term preference service ["Robinson List"] means the administration and operation of a suppression file of consumers who have registered their wish not to receive unsolicited direct marketing approaches, against which marketing lists are matched;
• The term premium rate number means a telephone/fax number to which a call is charged at a higher rate than the standard telephone tariff;
• The term processing means any operation or set of operations which is applied to personal data;
• The term product refers to any goods or services;
• The term seller refers to any person, firm or company that offers and provides goods and/or services by direct marketing, either directly or through an operator;
• The term tele-operator means either a seller or an operator using the telephone for direct marketing purposes;
• The term third parties means any natural or legal person other than the data subject, the controller and any person authorized to process the data under the controller's authority or on his behalf.

General requirements

Basic principles
Article 1
All direct marketing activities should be legal, decent, honest and truthful.

Every direct marketing activity should be carried out with a due sense of social responsibility and should conform to principles of fair competition as generally accepted in business. Activities should not appear to condone or incite violence, nor to encourage unlawful or reprehensible behaviour.

No activity should be such as to impair public confidence in direct marketing.

Honesty
Article 2
All direct marketing activities should deal fairly with consumers. Activities should be so designed and conducted to avoid giving ground for reasonable complaint.

Any factor likely to affect consumers' decisions should be communicated in such a way and at such a time th at the consumers can take it into account before accepting an offer or making any other commitment.

The fulfilment of any obligation arising from a direct marketing activity should be equitable, prompt and efficient.

No direct marketing should be represented to the consumer as being a form of marketing research.

Children and young people
Article 3
Direct marketing activities addressed to children and young people should not exploit their credulity or inexperience. No direct marketing activity should be undertaken which is likely to harm children mentally, morally or physically, or to strain their sense of loyalty vis-à-vis their parents or guardians.

Sellers and operators offering products to children should:

• identify material intended only for adults;
• encourage young children to obtain their parent's and/or guardian's permission before the children provide information, and make reasonable efforts to ensure that parental consent has been given;
• provide information to parents and/or guardians about ways to protect their children's privacy.

Communication of the message

Decency and suitability
Article 4
Those using direct marketing techniques should take particular care, given the variety of audiences, to ensure that their messages will not be seen as indecent, offensive or inappropriate. Such messages should conform to prevailing standards of decency.

Transparency
Article 5
Whenever information is gathered for direct marketing purposes, this should be made clear to the relevant consumers.

Whenever an offer is made, all the commitments undertaken by the seller, the operator and the consumer should be made clear to consumers, either directly or by reference to sales conditions available to them at the time of the offer.

Print which by its size or other visual characteristics is likely to affect substantially the legibility and clarity of the offer should be avoided.

Wherever appropriate a simple statement of the essential points of the offer should be clearly displayed in the promotional material. The scattering of essential points of the offer throughout promotional material should be avoided.

Presentation
Article 6

1. The presentation of the product should not contain any written, audio or visual element which directly or by implication is likely to mislead consumers, in particular with regard to such characteristics as nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin and environmental impact.
   When the presentation of an offer includes illustration of products not included in the offer, or where additional products need to be purchased for the consumer to be able to use the product on offer, this should be made clear in the offer.
   
   
2. The terms of any offer made should be clear, so that the consumer may know the exact nature of what is being offered.
   
   
3. High-pressure tactics which may be construed as harassment should not be used.

Any advertisements should be framed in strict accordance with the ICC International Code of Advertising Practice.

Comparisons
Article 7
The presentation of an offer containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition and with the protection of trade marks.

Points of comparison should be based on facts which can be substantiated and should not be unfairly selected.

Testimonials
Article 8
The presentation of the offer should not contain or refer to any testimonial or endorsement unless it is genuine, verifiable, relevant and based on personal experience or knowledge. Testimonials or endorsements which have become obsolete or misleading through passage of time should not be used.

Guarantees
Article 9
Offers may contain the word "guarantee", "guaranteed", "warranty" or "warranted" or words having the same meaning, only if the full terms of the guarantee as well as the remedial action open to the purchaser are clearly set out in the offer, or are available to the purchaser in writing. The name and address of the guarantor and the duration of the guarantee should be clearly stated.

Right of withdrawal
Article 10

1. Where consumers have a right of withdrawal sellers should inform them as to the existence of this right, how they obtain further information of this right, and how to exercise this right.
   
   
2. Sellers who undertake to supply products to the c onsumer on "free examination", "free trial", "free approval" and the like should clarify in the offer who will bear the cost of returning such goods and should make the return as simple as possible. Any time restriction for the return should be clearly disclosed.

After-sales service
Article 11
When after-sales service is offered, details of the service should be included in the guarantee or stated elsewhere in the offer. If the consumer accepts the offer, information should be given on how the consumer can activate the service and communicate with the service agent.

Identity of the seller
Article 12
The Identity and details of where the sellers and/or operators may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. At the time of delivery of the product, the seller's full name, address and telephone number should be made available to the consumer.

Unsolicited products
Article 13
Neither the seller nor the operator should deliver products for which payment is requested without having first received an instruction for the supply of such products.

Offers that are likely to be mistaken for bills, invoices or similar documents relating to unordered products should not be made.

Promotional incentives
Article 14
Direct marketing which utilizes promotional incentives should conform with the relevant provisions of the ICC International Code of Sales Promotion.

Safety and health
Article 15
Information provided with the product should include proper directions for use and full instructions covering health and safety warnings whenever necessary. The required health and safety warnings should be made readily understood by the use of pictures, text or a combination of both.

Goods and, where applicable, samples should be packaged in such a way as to be suitable for delivery to the customer - and possible return - in compliance with valid health and safety norms.

Fulfilment

Fulfilment of orders
Article 16
Orders should be fulfilled within 30 days from the date the order is received from the consumer, unless otherwise stipulated in the offer. Sellers or operators should inform the consumer of any undue delay as soon as it becomes known to them. In such cases, any request for cancellation of the or der by the consumer should be granted, even when it is not possible to prevent delivery, and the deposit, if any, should be refunded immediately.

Substitution of products
Article 17
If a product becomes unavailable for reasons beyond the control of the seller or the operator, another product may not be supplied in its place unless the consumer is informed that it is a substitution and unless such replacement product has materially the same or better characteristics and qualities, and is supplied at the same or a lower price. In such a case, an explanation of the substitution and of the right to return the substitute product at the seller's cost should be given to the consumer.

Return of faulty and damaged products
Article 18
The cost of return of faulty products damaged other than by the consumer is the responsibility of the seller, provided notice is given by the consumer within a reasonable period of time.

Credit and debt collection

Prices and credit terms
Article 19
Whether the offer is on a cash or instalment basis, the price and terms of payment should be clearly stated in the offer together with the nature of any additional charges (such as postage, handling, taxes, etc.) and, when possible, the amounts of such charges.

In the case of sales by instalment, the credit terms, including the amount of any deposit or payment on account, the number, amount and periodicity of such instalments and the total price compared with the cash price, if any, should be clearly shown in the offer.

Any information needed by the consumer to understand the cost, interest and terms of any other form of credit should be specified either in the offer or when the credit is offered.

Unless the duration of the offer and the price are clearly stated in the offer, prices should be maintained for a reasonable period of time.

Payment and debt collection
Article 20
The procedure for payment and debt collection should be such as to avoid undue inconvenience to the consumer, making due allowance for delays outside the consumer's control.

Debtors should not be approached in an unreasonable manner and debt collection documents which might be confused with official documents should not be used.

Costs of communications

Premium rates
Article 21

1. When promoting a premium rate number, such as an online message or telephone number, the seller or operator should state that the number is a premium rate and what the rate is, either as cost per minute or as cost per call.
   Sellers and operators should take particular care to ensure that the consumer not be kept waiting an unreasonable time in order to fulfil the purpose of the call.
   
   
2. When answering a call, a seller or operator should always begin by informing the consumer that it is a premium rate call. This should be done at the time the consumer is about to access the message or online service.

Use of lists and databases

Collection of data
Article 22

1. When collecting personal information from individuals, the seller and/or operator should ensure that the data subject is aware of the following:
   • the identity of the data controller;
   • the purposes of the collection;
   • any intention to transfer the data to third parties.

   The data subject can be informed of this in the context of the collection, by a separate notice or message, contract, or by adequate collective notices.
   
   

2. When it is not possible to inform the data subject at the time of the collection, this should be done as soon as possible thereafter.

Use of data
Article 23
Personal data collected in accordance with this Code shall be:

• collected for specified and legitimate purposes and not used in any manner incompatible with these purposes;
• adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed;
• accurate and kept up to date;
• preserved no longer than is required for the purpose for which the data were collected or further processed.

The data controllers should take reasonable steps to ensure that their processors and third parties respect the data protection principles of this Code. Sales agents of the data controller are not considered third parties.

Rights of the data subject
Article 24
Appropriate measures should be taken so as to enable consumers to exercise the following rights:

• to opt out from marketing lists;
• to require that their data are not made available to third parties;
• to rectify incorrect data which are held on them.

Preference services and suppression of data
Article 25

1. Sellers and/or operators should comply with the requests of data subjects that they not receive addressed mail, commercial telephone calls, faxes, e-mails or other addressed online communications by means of a preference service, in-house suppression file or by other means.
   
   
2. Names and other personal information contained in preference service suppression files should be used only to suppress matching information on promotional marketing lists which are to be used for making unsolicited marketing approaches. Names found in preference service lists should not be rented, sold or exchanged, except for suppression purposes.
   
   
3. When faxing or e-mailing or using any other form of online communication to consumers, particular care should be taken to reduce to the minimum any inconvenience likely to be caused by unwanted messages.

Security of processing
Article 26
Data controllers should ensure that they employ adequate security measures, having regard to the sensitivity of the information, to prevent unauthorized access or disclosure of the personal data.

Data controllers should satisfy themselves that any third party and/or processors they employ have adequate security measures.

Transborder transactions
Article 27
Particular care should be taken to maintain the data protection rights of the data subject when personal data is transferred from the country in which it is collected to another country.

When data controllers have processing conducted for them in another country, they should take all reasonable steps to ensure that adequate security measures are observed and that the data protection principles of this Code are respected. The use of the ICC model contract covering agreements between the originator of the marketing list and the processor or user in another country is recommended.

Unaddressed direct mail

Respecting consumer wishes
Article 28
Where a system has been established to enable consumers to indicate their wish not to receive unaddressed mail, this should be respected.

The telephone in direct marketing

Content of the call
Article 29
Telephone marketing offers should always comply with the general rules specified in this Code as well as with the following provisions:

1. Outbound calls
   When tele-operators call a consumer, they should promptly:
   • state the name of the seller they represent;
   • unambiguously state the purpose of the call;
   • politely terminate the call when it is apparent that the receiver of the call is not competent, or does not wish to take the call or is a child (unless the tele-operator receives permission from an appropriate adult to continue).
     
     
2. Inbound calls
   When tele-operators receive calls from consumers, tele-operators should state the name of the seller they represent.
   
   
3. All calls
   Before closing the call the tele-operator should ensure that the consumer is informed and aware of the nature of any agreement reached, and of what steps will be taken following the call.
   Where a sale is purported to have been made, a minimum requirement is that consumers should be aware of the essential points of the contract which should include as a minimum:
• the main characteristics of the goods or services;
• where goods or services are to be supplied permanently or for an ongoing period the minimum duration of the contract;
• the price of the goods or services including any additional costs (e.g. delivery costs, taxes to be charged by the seller);
• the arrangements for payment, delivery or performance; and
• Any right of withdrawal that they may exercise.

Where the call leads not to a sale but to a further contact by a seller the tele-operator should inform the consumer of a subsequent contact, and where information supplied by the consumer may be used for any non-obvious purpose the tele-operator should make this fact, and the purpose, clear to the consumer in accordance with article 22 .

Reasonable h ours
Article 30
Outbound calls should, unless expressly otherwise requested, only be made during hours which are generally regarded as reasonable for the recipient.

Right to written confirmation
Article 31
Where an order has been placed following a call, the consumer has the right, in good time and at the latest at the time of delivery of the goods or at the commencement of the delivery of the services, to confirmation in writing or durable format of the detailed terms of the contract. Confirmation should include at least the information specified in article 10 (right of withdrawal) and 12 (identity of the seller) as well as any other information specified in article 4 to 22 of this Code, as and where appropriate.

Monitoring of conversations
Article 32
The monitoring, including taping, of telephone conversations made for telephone marketing purposes should be conducted only with appropriate safeguards, in order to verify the content of the call, to confirm a commercial transaction, for training purposes and for quality control. Marketers should ensure that the tele-operator is aware of monitoring; that, where practicable, the consumer is also aware of the possibility of monitoring; and that any taped recorded conversations are not played to a public audience without the knowledge of both parties.

Unlisted numbers
Article 33
Consumers with an unlisted number should not knowingly be contacted for direct marketing purposes, other when the number was supplied by the consumer to the sellers or operators.

Use of automatic dialling equipment
Article 34

1. Where a predictive dialler is used, when a tele-operator is unavailable to take the call generated by the dialler, the equipment should abandon the call and release the line in not more than one second.
   
   
2. Where other automatic dialling equipment is used, it may be used to contact a consumer only where the call is initially introduced by a tele-operator or where the consumer has previously agreed to receive such calls without tele-operator intervention.
   
   
3. Neither predictive dialler nor any other automatic dialling equipment may be used unless the equipment immediately disconnects when the consumer hangs up. Dialling equipment should release each time before connecting to another number.

Online Communications
Article 35
Sellers and/or operators should respect the role of particular news groups, forums or bulletin boards as public meeting places which may have rules and standards as to acceptable commercial behaviour.

Sellers and/or operators are encouraged to post their privacy policy statement online. Where such privacy policy statements exist, they should be easy to find easy to use and comprehensible.

Sellers and/or operators should make a suppression mechanism available to users who do not wish to receive future online commercial solicitations. Unsolicited online addressed commercial messages should be clearly identified as such and should clearly identify the seller and or operator.

Responsibility, substantiation and implementation

Responsibility
Article 36

1. The prime responsibility for all aspects of direct marketing activities, whatever their kind or content, always rests with the seller.
   
   
2. Those taking part in the planning, creation or execution of any direct marketing activity have a degree of responsibility commensurate with their position for ensuring the observance of the Code.
   
   
3. Thus in addition to the sellers the Code should be duly observed by:
   • operators or data controllers, or their subcontractors, who contribute to the activity or communication;
   • publishers, medium-owners or contractors who publish, transmit or distribute the offer or any other communication.

Rules apply to entirety of direct marketing communication
Article 37
The rules of this Code embrace the direct marketing communication in its entire content and form, including testimonials, statements and visual presentations originating from other sources. The fact that the content or form of the direct marketing communication originates wholly or in part from other sources is not an excuse for non-observance of the rules.

Respect of self regulatory decisions
Article 38
No seller, operator, publisher, medium-owner or contractor should be party to the implementation of any direct marketing activity or to the publication or distribution of any communication which they know to have been found unacceptable by the appropriate self-regulatory body or available dispute-resolution mechanisms.

Effect of subsequent redress for contravention
Article 39
While subsequent correction and appropriate redress according to available dispute-resolution systems for a contravention of the Code are desirable, they cannot excuse the original contravention of the Code.

Substantiation
Article 40
Substantiation of verifiable facts needed to establish compliance of the direct marketing activity with the Code should be available and be produced when called for by any appropriate self-regulatory body.

Implementation
Article 41
This Code is to be applied nationally and internationally, and should be the basis for the decisions by bodies set up for the purpose of self-regulation.
Any request for interpretation of the principles contained in this Code should be submitted to the ICC Code Interpretation Panel.*

*	FOOTNOTE: See the Terms of Reference of the ICC Code Interpretation Panel - www.iccwbo.org

Copyright June 2001