I'm with John.
The problem is there is no definition of marketing. By and large I tend to go with ICO's interpretation even where it is fairly broad e.g. I can see where influencing behavior "eat five fruit a day" might be regarded as marketing if part of a mass campaign.
I would say to such a client:
* definition is unclear
* guidance and advice is only that so if you come up with a reasoned view to the contrary any breach would at least not be deliberate
* underlying all this is an HR framework. PECR must be interpreted both on a purpose and proportionate basis
* can anyone reasonably argue that the purpose of PECR was to prevent such activity or that prohibition is a proportionate requirement to protect recipients human rights. The purpose and proportionality do not require that this be interpreted as marketing
There is a risk if you go for it - but a greater risk that ICO will look like a complete chump if she gets heavy.
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