Bank ordered to stop marketing to customers who opted-out

The company sent two newsletters to customers, one containing promotional offers, the other only containing product information. The second newsletter was sent to people who had said they did not want to receive marketing information from the firm.

The company said that that version "did not contain any promotional offers but was otherwise exactly the same as the first version," it told the ASA.

The watchdog said that the sending of these newsletters was against the wishes of the people who had opted out.

"The ASA considered that, although it did not contain any promotional offers, the second version of the newsletter was nevertheless likely to be viewed by recipients as a marketing communication, because it promoted ING Direct's 'Flexible Mortgage', 'Home Insurance', 'Guaranteed Investment Account' and 'Cash ISA'," said the ASA ruling.

"We considered that, by ticking the opt out box on the application form, customers would expect to receive no communications at all from ING Direct about their other products and services; those customers were likely to interpret the receipt of an ING Direct promotional newsletter, accompanied by a letter that stated 'We currently have you recorded as having opted out from receiving marketing promotions from ING Direct', as ING Direct being aware of, yet ignoring, their wishes," it said.

The company was ordered by the ASA not to send "any marketing communications at all" to customers who had opted out of receiving them.

Companies which want to contact people who have opted out have more than just advertising regulations to contend with, though, said Louise Townsend, a privacy law specialist with Pinsent Masons, the law firm behind OUT-LAW.COM.

"The Data Protection Act (DPA) says that you have an absolute right to object to direct marketing from an organisation at any time," she said. "If you have objected, it is a breach of a right under DPA if a company markets to you."

"There is guidance from the Information Commissioner on what is marketing. Is it marketing to send out a newsletter? The Commissioner's guidance is quite wide, and says anything that promotes your ideals or aims as an organisation is marketing."

Townsend said that it might be possible in some circumstances to contact people in the form of a service communication.

"You do get companies that try and get away with it, if they are sending monthly bills to individuals, they might try and put something there that they would argue is minimal or incidental to the main purpose of the message," said Townsend. "But the Commissioner's view would be that even that is trying to be marketing, so you have got to be very careful."