For the first time since the CAP Code of Advertising, Sales Promotion and Direct Marketing introduced new rules for UK digital marketers, the ASA has reported an email marketing case focusing on the new opt-in regime.
Topic: Digital Marketing
Who: The Training Guild
Where: The Advertising Standards Authority, London
When: September 2003
The Advertising Standards Authority published its adjudication on a complaint over unsolicited marketing e-mail. The e-mail was promoting training seminars organised by ‘The Training Guild’ of Southampton. In the subject field it stated ‘Business Seminars – Telesales and Selling Skills Made Easy’. When opened, the e-mail was headlined ‘The Training Guild Business Training Seminar’ and stated ‘Telesales and Selling Skills…MADE EASY…At Last a Selling Skills Course for Non-Aggressive Sales People. The most successful sales course in the UK…more than six hundred and fifty companies have attended…’
There were two objections to the e-mail from the recipient who complained. First of all, that the subject field information did not make it sufficiently clear that it was a marketing communication. The second complaint was that the advertisers did not get explicit consent before sending the e-mail to the recipient.
The first complaint was not upheld. The ASA agreed with the Training Guild that the words ‘Business Seminars – Telesales and Selling Skills Made Easy’ made it clear enough that this was a marketing communication.
On the second complaint, the Training Guild encountered heavier weather.
It defended its position on the basis that the e-mail address of the recipient who had complained was in a list of e-mail addresses which they had bought and they honestly thought was clear for use. This was because they had been informed by the supplier of the list that the addresses were for businesses, not individuals, which they believe had opted to receive information about training and business development topics by e-mail.
The ASA acknowledged that the list in question had been received in good faith, but in this case of course the address was not of a business but of an individual. The Training Guild was also unable to produce any evidence that this particular individual had ever opted into receiving information of this kind by e-mail.
The ASA concluded that under the CAP Code it was up to the Training Guild to ensure that all recipients on the list that they used had given their ‘explicit consent’ to receive communications of this kind, and since this could not be proved the complaint was upheld.
Why this matters:
This is the very first reported ASA decision on email opt-in since the Committee of Advertising Practice unilaterally changed the rules for e-mail marketing in the UK. They did this by way of the new CAP Code of British Advertising, Direct Marketing and Sales Promotion, which was launched in March 2003.
Before this, in the UK the legal position on email marketing was the same as the position under the CAP Code. It was quite acceptable to send unsolicited commercial e-mails unless and until the recipient opted out of receiving future such communications.
The new CAP Code in March 2003 changed all this. It introduced a requirement, that except where the e-mail was being sent to ‘existing customers’ of the sender, no unsolicited commercial e-mail could be sent without the ‘explicit consent’ of the recipient having been obtained beforehand.
Compliance with the CAP Code is compulsory for all UK marketers, and this decision now underlines the importance of the change in the Code.
The report also highlights that it is very much ‘caveat emptor’ (let the buyer beware) for those acquiring or renting e-mail marketing lists. Due diligence is now essential as to exactly how the addresses on the list were obtained in the first place, what disclosures were given at the time of data capture and the ‘opt-in/opt-out’ position. The contract governing the renting or buying of the list should also be in writing and contain suitable warranties and indemnities from the supplier.
On the other complaint, dealing with identification of the e-mail as a marketing communication. This is not just a CAP Code requirement but also a legal obligation. Under the 2002 E-Commerce regulations, all unsolicited commercial e-mail sent by UK marketers must be identifiable as a marketing communication immediately on receipt.