Who: Information Commissioner’s Office (“ICO“)
When: 17 July 2017
Law stated as at: 2 August 2017
Back in our April edition of marketinglaw, we reported how Flybe and Honda had both been fined by the ICO for sending e-mails to people who had previously opted-out of direct marketing, asking if they had changed their minds. That was not the last of it…
On 17 July 2017, the ICO fined Moneysupermarket.com £80,000 for sending millions of e-mails to customers who had made it clear they didn’t want to be contacted in any way.
Moneysupermarket.com sent 7.1 million e-mails over 10 days updating customers (all of whom had opted out of direct marketing) with its new Terms and Conditions. The e-mail included a substantial section entitled ‘Preference Centre Update’, in which Moneysupermarket explained to customers that they had previously indicated their desire not to receive marketing e-mails, but provided a large ‘click link’ box in case they wanted to re-consider.
The ICO concluded that this was a direct contravention of the direct marketing provisions of the Privacy and Electronic Communications Regulations 2003.
Why this matters:
Many businesses will consider how (if at all) they can encourage customers to change their preferences in relation to direct marketing. They may consider doing so in an e-mail which also has another purpose (for example, notifying customers of updated terms, or asking them to update their details). The Flybe, Honda and now Moneysupermarket fines prove that it is going to be very difficult to do so in accordance with the requirements of the PECR.
In its direct marketing guidance (available here), the ICO does seem to consider that it may be acceptable to remind people that they can opt back in to marketing, but only if the reminder forms “a minor and incidental addition to a message being sent anyway for another purpose”. Treading the right side of the line is going to be difficult, and will need to be done very sensitively to avoid significant fines from the ICO.