Out-Law News 3 min. read

E-marketers warned by ASA for not getting consent


The UK’s Advertising Standards Authority yesterday issued rulings against two companies that had sent unsolicited commercial e-mail without the explicit consent of recipients. The e-mails breached a new Code of Practice.

The UK's Advertising Standards Authority yesterday issued rulings against two companies that had sent unsolicited commercial e-mail without the explicit consent of recipients. The e-mails breached a new Code of Practice that came into effect earlier this year.

Since March, marketers in the UK have been obliged to follow what is known as the CAP Code - a set of rules produced by the UK's Committee of Advertising Practice. Administered by the ASA, the rules govern the content of UK non-broadcast marketing communications.

Although lacking the force of legislation, the Code should be followed by all businesses and there are penalties available for non-compliance.

The Code states that marketers:

"should ensure that marketing communications are designed and presented in such a way that it is clear that they are marketing communications. Unsolicited e-mail marketing communications should be clearly identifiable as marketing communications without the need to open them."

It also states that the explicit consent of consumers is required before:

"marketing by e-mail or SMS text transmission, save that marketers may market their similar products to their existing customers without explicit consent so long as an opportunity to object to further such marketing is given on each occasion."

Case 1: Business in a Box

A complaint had been made to the ASA over an e-mail from a Bristol company called "Business in a Box". Its e-mail contained only the word "Hi" in its subject line, and followed on in the style of an informal letter.

The e-mail offered a 'business opportunity' that the sender claimed to have stumbled upon while out of work following a back injury:

"I was a little sceptical at first about all these get rich quick schemes, but something about the 'Business in a Box Programme' was different from anything else I had looked into ... A few stats may interest you! As a member of the human race you have a 1 in 7,000,000 chance of becoming a millionaire. By joining us you up your chances by 1 in 26,000! much better odds than the Lottery! ..."

The marketers were accused of sending unsolicited commercial e-mail without consent, and of sending an e-mail that did not make clear prior to opening that it was an advert.

The ASA upheld the complaint on both grounds, and highlighted other concerns:

"The Authority pointed out that the advertisers had not suppressed the complainants' details on the Authority's request. It noted the advertisers had offered a business opportunity but considered that, because the advertisers' website included their full name and geographical address, the e-mail did not mislead on that point. The Authority considered that the e-mail had not made clear, before opening, that it offered a business opportunity because it stated 'Hi' in the subject field. The Authority understood that the complainant was not a customer of the advertisers and the advertisers had not sought the complainant's consent before they sent the e-mail. The Authority considered that the advertisers had not substantiated the claim '... By joining us you up your chances by 1 in 26,000! [sic] much better odds than the Lottery! ...' and had not made clear throughout the e-mail that the nature of the work they were advertising was a business opportunity."

As a result, the ASA has requested the Committee of Advertising Practice to inform its members of the breach by the company. Under the rules, CAP members, such as trade associations, may refuse Business in a Box advertising space, commission, or membership of the trade association.

Case 2: Evesham Technology

The second case related to five e-mails sent by one of the UK's leading PC sellers, Evesham Technology, trading as lowestonweb.com (the web site of which makes no reference to the more popular Evesham.com). The recipients had not consented to receiving the e-mails.

The ASA upheld the complaints on the grounds that while the marketers had used data purchased from another company, it had not checked whether the data supplier - and consequently the e-mail addresses supplied - were bona fide.

According to the ASA:

"The promoters said they had bought the data, over the Internet, from a company that had told them they could supply databases of opt-in e-mail addresses. They said they had later found that the data was not suitable for e-mail marketing. The promoters said they had not used that data provider again and were reviewing their purchasing of databases. The Authority concluded that the promoters had not checked the bona fides of the database supplier and thus the integrity of the data. It told them to take greater care to ensure the integrity of the data in future."

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