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Barclaycard are doling out the dosh

Opt-out under section 11 of the DPA with Barclaycard for your chance of winning a £350 gesture of goodwill when they abuse your rights by sending you direct marketing.

My section 11 template

With financial services companies, I tend to opt-out under section 11 shortly after registering with them. This is because, when it comes to the promotion of their products, they tend to find some lame excuse to abuse the rights afforded me by the DPA and the PECR. Often they'll rely on the banking code of practice to justify the abuse - they'll say that they have some legal obligation to make me aware of their products or services in the same way as insurance companies tend to quote ICOBS to justify submitting a similar abuse. I've checked though with the relevant agencies and these codes of practice place a regulatory not a statutory obligation on the business so I'm not convinced that they can negate their statutory obligation to comply with my rights as their data subject.

To be fair, Barclaycard seemed to honour my wish not to receive their marketing until February 2014 when they sent me a letter to promote the benefits of their card.

A reminder about your Barclaycard benefitsLightbox window

This letter was likely to fall under the definition of direct marketing given at section 11(3) of the DPA:

In this section "direct marketing" means the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals.

The letter was promoting the benefits of Barclaycard and it was directed at me so I contacted Barclaycard to find out why they had sent me marketing.

Barclaycard replied as follows:

Summary of outcome
I can confirm that the letter you have received is not classed as marketing, but as operational mailing. I am unable to prevent these mailings from being sent to you. I realise this may not be the answer you wanted, so I have given further details of this outcome and addressed all the points of your complaint below.

Investigation
The letter you received was sent to you as your account has been dormant for some time, and we wished to remind you of the features and benefits of your card. We were not attempting to 'sell' our products to you, as you are already an existing customer. Therefore this does not fall under the definition of direct marketing provided by the Information Commissioner. I can confirm that all marketing is suppressed on your account. I am not able to prevent any future operational mailings being sent to you, as these can include information that we are legally obliged to provide, such as changes to your account.

Okay, well, if this person is willing to discuss the technicalities of the DPA, wouldn't you expect her to have an understanding of the DPA? Where in section 11(3) does it mention the selling of products? The definition at section 11(3) is far more wide-ranging than the sale of products. Indeed, the ICO told me:

The Commissioner regards the term "direct marketing" as covering a wide range of activities which will apply not just to the offer for sale of goods or services, but also the promotion of an organisation’s aims and ideals. This would include a charity or a political party making an appeal for funds or support an, for example, an organisation whose campaign is designed to encourage individuals to write to their MP on a particular matter or to attend a public meeting or rally.

So she's wrong! The result of her first investigation then... an utter load of bollocks!

I replied to clarify the law and Barclaycard replied as follows:

I wrote to you recently about the letter you received from us. I am sorry I have not been able to resolve your complaint to your satisfaction. I have looked into your case and I'm afraid I will not be able to change my decision. As previously advised, the letter does not fall under the definition of Direct Marketing as agreed by the Information Commissioner. If you still wish to take this to the Information Commissioner and they wish to discuss this with us, we would cooperate fully.

Okay, well, she's now claiming that the Commissioner agrees with her view... did she contact the ICO then for advice? Fortunately, having submitted many complaints to the ICO about section 11 since 2007, I do know what the Commissioner's view is. Well, it's the view of a Lead Information Governance Officer at the ICO so it's close enough:

I should explain that when a data subject enters into an agreement with a service provider, they are consenting to the service provider’s terms of service. Whilst data subjects have an absolute right to issue a notice to the service provider’s instructing them to cease processing their personal data for direct marketing purposes, this may be in direct conflict with the terms of service agreed to. However, the service provider is still obliged to comply with the section 11 notice.

The result of her second investigation then... an utter load of bollocks! Is she going to seek guidance from their Compliance Officer at some point or is she going to continue to give an unfounded opinion?

I replied and this time I sought clarification about who she had contacted as part of the investigation and whether she had sought advice from the ICO. Barclaycard replied as follows:

l can confirm that as you have opted out of receiving direct marketing, we should not have sent you the features and benefits reminder letter in question. I have credited your account with £250.00 for this being sent, and an additional £100.00 for being previously advised that this was not an error. Further details of this outcome are given below where I have addressed all the points of your complaint.

Our investigation
In relation to your comment that there was nothing in my previous responses to indicate they were anything other than my opinion, I can assure you that this was not tie case. Though I do apologise if this is how it came across. your complaint had been discussed between managers and relevant departments before the information that that the letter was operational was given to you.

The particular campaign that your account was included in was reviewed and signed off as being acceptable to send to customers who have opted out of receiving marketing. On further review, there has been miscommunication and misunderstanding between the departments involved and this letter should not have been sent to you. It would only have been an acceptable operational communication if you paid a fee for your account, which you do not.

Appropriate review and action is being taken to prevent this from happening in future.

The above mentioned credits have been applied to your account in one amount of E350.00 and will show on your next statement. This means that your account now has a credit balance of f350.00. To transfer this to your bank account please call us on 0844 8l 1 9l I 1 with your card and bank details to hand. Alternatively, it can be used against future spending on your account.

Again, I would like to sincerely apologies for the errors that have been made. I hope that this letter and the actions taken have resolved matters for you, and you no longer feel the need to take the issue further. Naturally, if this is something you still wish do we will cooperate fully with any avenue you choose to take.

Barclaycard - how much do they earn in profits each year... do they have a Compliance Officer? If not, then why not? If so, then why wasn't my complaint forwarded to that person?

She still doesn't get it though! She claims that I received the marketing in error because it should have only gone to those individuals who paid for the service. So what she's saying is, if I'd paid for my Barclaycard - which I find a bit strange, it would have been okay to send me this communication? It would not be - not if I'm opted out under section 11, because once I am opted out under section 11...

BARCLAYCARD CANNOT SEND ME ANYTHING THAT FALLS UNDER THE DEFINITION OF DIRECT MARKETING GIVEN AT SECTION 11(3).

Or, indeed, the Commissioner's wider-reaching definition given above.

To be fair, they actually have 30 days to stop all electronic marketing and 90 days to stop all postal marketing form the date that they receive the notice.

I was going to let it go but I think I need to submit a complaint to the ICO because clearly, they still don't get it. My advice is for Barclaycard customers to opt-out under section 11.

Funnily enough, on the same day that I received the final letter from Barclaycard, I also received a letter from the Natwest saying that they had investigated my complaint and that they were entitled to send me marketing. And so it starts again. It's fine by me because all gestures of goodwill go into my war chest for when I need to take a company to court.

As a final thought... Barclaycard is a registered data controller and it's a criminal offence for a registered data controller to have an outdated registration with the ICO beyond a month - their actual data processing must be reflected in their registration. But if Barclaycard are of the opinion that they have some other legal obligation that impacts on their ability to comply fully with section 11 of the DPA, then why have they not sought advice from the ICO about this? A data controller can only process personal data in accordance with the DPA and it's something that I shall raise with the ICO when I submit my complaint.

Added: 11.05.2014

Section 11 overview

My section 11 template