Various legal regulations impact on identifying the sender of a marketing email, but the CAP code also applies and the Advertising Standards Authority has reached an important verdict for those digitally marketing third party products.
Topic: Digital marketing
Who: Direct Market Services Limited
Where: The Advertising Standards Authority
When: June 2004
An objection was filed with the Advertising Standards Authority (“ASA”) to a business to business promotional e-mail for BT Broadband.
The “From” field stated “BT offers (staff @CTM14.com).” The “Subject” field stated “Save £260 when you connect to broadband from BT.”
The message continued “Free activation on BT Openworld broadband…huge cost savings for your business…increased productivity…e-mails arrive in real time.”
The complainant objected that the e-mail misleadingly implied that it was sent by BT and that the claim “e-mails arrive in real time” was misleading. This was because, so far as the complainant was concerned, many factors beyond the advertiser’s control could influence the speed with which e-mails arrived.
On the first complaint, the promoter Direct Market Services (“DMS”) explained that it was a BT distributor operating under a sales referral agreement with BT. This entitled DMS to market and promote selected BT offers and solicit new orders for BT.
All resulting contracts were directly between BT and the customer. A certificate which BT sent clearly showed also that DMS passed stringent BT selection requirements.
On the other hand, DMS clearly had autonomy and made decisions as to how BT’s offers were presented and BT had no control over where, how and to whom the promoters’ marketing communications were sent.
The ASA view
Because the promoters were not BT but an independent distributor promoting BT products, the e-mail should in the view of the ASA have immediately made clear, in the subject field, that the communication was from DMS.
Accordingly the e-mail was misleading and the promoter was required to ensure that its e-mails made their identity clear in the future.
The second complaint was also upheld. The ASA noted that although BT Broadband could send e-mails out instantaneously, it did not control the entire route of the message. This was subject to external factors such as the speed of the recipients’ server and the number of requests the mail server had to deal with at the time. As the message implied that BT Broadband could always deliver e-mails in real time it was therefore misleading and the ASA asked DMS not to repeat it.
Why this matters:
On the question of identifying the sender, the DMS e-mail was probably in conflict with a number of legal regulations, including those contained in the Consumer Protection (E-Commerce) Regulations 2000, the Consumer Protection (Distance Selling) Regulations 1991 and potentially the Electronic Communications (EC Directive) Regulations 2003 in terms of its requirement that the identity of the sender of an unsolicited e-mail should not be disguised or concealed. As appears now to be the default position in the case of activities of this kind, it is the Advertising Standards Authority who leads the pack in terms of taking swift regulatory action when a complaint is raised.