Out-Law / Your Daily Need-To-Know

Out-Law News 1 min. read

Businesses warned against 'dressing up' marketing emails that customers have opted out of

Businesses cannot send marketing emails to customers that have elected to opt out of receiving such messages as part of moves to update their terms and conditions, the UK's Information Commissioner's Office (ICO) has said.

The watchdog fined price comparison website Moneysupermarket.com for sending more than 7.1 million marketing emails to customers that had previously opted out from such marketing. The business was responsible for a serious breach of the UK's Privacy and Electronic Communications Regulations (PECR), the ICO said.

In its email, Moneysupermarket asked recipients whether they wished to "reconsider" their previous decision to opt out of receiving "personalised news, products and promotions" from the company, and prompted those that did to sign-up to do so.

The ICO said, though, that "asking people to consent to future marketing messages when they have already opted out is against the law".

In its monetary penalty notice (14-page / 221KB PDF), the ICO said: "The [information] commissioner’s direct marketing guidance is clear that organisations cannot e-mail or text an individual to ask for consent to future marketing messages. That e-mail or text is itself sent for the purpose of direct marketing and will be subject to the same rules as other marketing texts and e-mail."

"The guidance also stresses that organisations should keep clear records of what an individual has consented to, and when and how this consent was obtained, so that they can demonstrate compliance in the event of a complaint," it said.

Head of enforcement at the ICO, Steve Eckersley, warned organisations against "sending direct marketing dressed up as legitimate updates". Those that engage in such activity risk enforcement action, he said.

"When people opt out of direct marketing, organisations must stop sending it, no questions asked, until such time as the consumer gives their consent," Eckersley said. "They don’t get a chance to persuade people to change their minds. Emails sent by companies to consumers under the guise of ‘customer service’, checking or seeking their consent, is a circumvention of the rules and is unacceptable. We will continue to take action against companies that choose to ignore the rules."

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