Who: Information Commissioner’s Office (ICO) and EE Limited (EE)
Where: UK
When: June 2019
Law stated as at: 7 October 2019
What happened: EE sends text messages to its existing customers encouraging them to make use of the EE app. There were two versions of the text message, both of which were designed to remind existing customers that they could check their bills and monitor data and usage on the app. One of the text messages also reminded users that the app would show them a countdown until their next upgrade was available.
Despite the messages containing no overt advertising or marketing content, a complaint was made to the ICO that these were marketing messages and had been sent to customers who had opted out of receiving such messaging. The ICO agreed, finding that the messages were “marketing messages” because the app itself allowed customers to purchase further data and products. This was despite the fact that the content of the text messages did not highlight these features.
The implication of this is that any message which is designed to encourage use of an app with this type of functionality is likely to be deemed advertising these services and therefore a “marketing message” for the purposes of data protection law. The ICO also highlighted that the “countdown to your next upgrade” wording was particularly problematic, presumably because this suggests to consumers that they may need new products; taking the wording closer to overt marketing.
The ICO ruled that sending the messages contravened regulation 22 of the Privacy and Electronic Communications Regulations (PECR), which prohibits direct marketing when consent has been withdrawn. Although the ICO acknowledged that EE had not intended to contravene PECR, it still found that the breach was deliberate because EE was aware of the law and the ICO’s guidance on direct marketing. As a consequence, EE was fined £100,000 for the breach.
Why this matters:
Many organisations send so-called “service messages” about apps and other products or services. It had generally been understood that provided such messages did not highlight services or additional products which required further payment and were sent to existing customers, then such messages would fall outside of the restrictions on sending marketing messages.
However, this ruling suggests that the ICO takes a very narrow view as to what a service message can be and sending messages which highlight the existence of free functionality or services may breach marketing rules if the app or other product or service also enables customers to buy add-ons or additional products or services.
