Out-Law News | 19 Feb 2004 | 12:00 am | 2 min. read
According to the Independent Commission for the Supervision of Standards of Telephone Information Services (ICSTIS), the unsolicited commercial e-mails from BW Telecom contained a pornographic attachment and were sent randomly, with no attempt to prevent them being sent to children.
Once open, a confusing pop-up box encouraged users to press a button marked "click me" – the normal "X" button closing only a terms and conditions screen, not the pop-up box. The "click me" button actually connected users to a premium rate adult service, from which users could only disconnect if they went off-line. Moving to another web site did not close the connection.
ICSTIS received hundreds of complaints about the e-mails and found that BW Telecom was in breach of the ICSTIS guidelines. The company was fined £75,000 and access to the service was barred for a period of 12 months. It was also instructed to offer redress to all complainants.
It is just one of several fines issued by ICSTIS in the past week – others covering, for example, misleading recorded prize information.
The tough action taken by ICSTIS is in sharp contrast to the enforcement penalties imposed to date by the Advertising Standards Authority (ASA), which regulates the non-broadcast advertisements, sales promotions and direct marketing in the UK. It is an independent and self-regulatory body, but has little in the way of enforcement powers.
One of its most recent rulings, published yesterday, went against UK company Phone Direct. It had sent an e-mail promoting cheap telephone services. Four people complained that they had not consented to receive the e-mails – i.e. that they amounted to spam. Explicit consent to such e-mail is required by the CAP Code, a rule book for marketers.
However, while the ASA upheld the complaint, it did little more than tell the Berkshire-based company to amend its advert and not to break the rules again, albeit the advertisers did not respond to the Authority's enquiries, in itself another breach of the Code.
The ASA deterrent can be summarised as adverse media coverage and the power to request that its members effectively ostracise those who break the CAP Code. Its last resort is to refer a marketer, agency or publisher to the Director General of Fair Trading under the Control of Misleading Advertisements Regulations 1988. The Office of Fair Trading can then obtain an order through the courts to prevent advertisers from using the same or similar claims in future marketing communications.
Fines are seen a good way to deter spammers – but the ASA does not have the power to levy them and there are only a few varieties of spam that fall within the remit of ICSTIS. The Office of the Information Commissioner can also take enforcement action with some varieties of spam but has not done so to date and in any event its first step is likely to be only a warning.