Since March 2003, marketers in the UK have been obliged to follow this 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 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."
The Code also 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."
Complaints were made to the ASA over e-mail marketing appearing to come from a London-based individual called C Fry for a prank telephone call service and for a CD-ROM. The series of e-mail messages contained subject headers such as "Fun Prank Calls", "Gags r US", "e-mail address", "Unbelievable Secrets CD" and "Phone Jokes".
One e-mail read:
"... This email has been sent to you as an opt-in promotion from a partner company, and has originated outside of the EU ..."
"... This promotion has been sent to you because you have opted to receive promotions from us or one of our partner companies. This email has been sent on our behalf and not actually by us, which has originated from the European Union [sic] ..."
Six of the e-mail messages gave details of a telephone number to call in order to opt out of future promotions. The number changed on later e-mails.
According to the ASA all the complaints referred to the fact that the e-mails were unsolicited. One complainant objected that the reference to it being an opt-in promotion was misleading and that it was not obvious that the e-mails were adverts until they were actually opened.
Another complainant objected that the e-mails did not allow the recipients to opt out of later promotions – on ringing the number provided recipients were given a "defunct free-mail address".
The ASA upheld the complaints, despite assertions from Fry that he had not sent the e-mails.
The Authority found that the marketer had ignored requests to prove that the recipients had consented to receive the e-mails, and noted that
"the Independent Commission for the Supervision of Standards of Telephone Information Services (ICSTIS) had recently fined the advertiser for sending his promotional e-mails to business addresses."
The ASA warned Fry to
"ensure that, in future, e-mails were sent only to consumers who had consented to receive promotional e-mails."
With regard to the subject headings the ASA found that
"some of the subject headings, especially those headed with an e-mail address, did not make clear that the e-mails were advertisements."
The Authority also ruled that
"the advertiser had not shown that consumers were given the opportunity to opt-out of receiving future messages. It told the advertiser to ensure that consumers who had given consent to receive promotional e-mails were given an opportunity to object to further e-mails on each occasion."
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 advertising space to Fry, commission, or membership of the trade association.