Berkshire-based Phone Direct advertised its international call rates by e-mail. The addressee field read "Friends Group" and the subject fields read "FW: Useful information this time of year".
The content of the e-mail read like typical spam:
"Hiya, With most of you all going on holiday soon, I just thought this website my boyfriend emailed me about would be useful! Looks like you can save loads on international phone calls. Helen X".
An apparently forwarded message in the e-mail read:
"Hi Helen, I have just been told about this website where it tells you how to make cheap phone calls, it looks pretty good and we don't even need to register with them. I will be able to call you every day when you are on holiday as it will only cost me the same as ringing you when you are here! The website is here: http://www.pd-dial.com Anyway, must get on with more work, take care babe Steve".
Complaints were made to the ASA on the basis that the e-mail did not make clear that it was a marketing communication. Given the nature of the e-mail it is perhaps surprising that the ASA's report makes no suggestion that the e-mail was unsolicited.
This was not a court case, and no laws were referred to. However, marketers in the UK are obliged to follow what is known as the CAP Code - and the complaint was made under a new provision of the Code, introduced in March this year.
The CAP Code is a set of rules produced by the UK's Committee of Advertising Practice, which are administered by the ASA, governing 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 (see the OUT-LAW stories in the link below for details).
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."
This echoes a legal requirement introduced by the E-commerce Regulations of 2002. However, there has been little or no guidance under either the CAP Code or the E-commerce Regulations on how to identify marketing communications as such.
Some suggest adding "ADV" to the start of a subject line, to indicate an advert, as is a requirement under Californian and other anti-spam laws, but until September there was no authoritative guidance as to what counts as adequate identification in the UK under the CAP Code.
Last month the ASA ruled on a case in which a marketing e-mail was headed "Business Seminars – Telesales & Selling Skills Made Easy". It accepted that this choice of header made clear that the e-mail was a marketing communication. But the nature of Phone Direct's e-mail was not apparent from the subject header. The ASA concluded that Phone Direct's e-mail was misleading because neither the format nor the content identified it as a marketing communication.
In upholding the complaints, the ASA wrote:
"The advertisers did not respond in writing to the Authority's enquiries. The Authority was concerned by the advertisers' lack of response, which it considered a breach of the Code. The Authority reminded the advertisers of their responsibility to respond to its enquiries and told them to do so promptly in the future. The Authority considered that the e-mail was misleading because its format and content did not make clear that it was a marketing communication. The Authority told the advertisers to stop sending the e-mail and asked the Committee of Advertising Practice to advise its members of the problem with the advertisers."