A recent ASA verdict underlines the risks of (1) asking individuals who have previously opted out of receiving marketing communications if they would like to change their mind and (2) including marketing messages in newsletters. Stephen Groom reports.
Who: ING Direct N.V. and the Advertising Standards Authority
When: March 2008
Law stated as at: 7 April 2008
A recipient of a direct postal mailing from financial services brand ING, based in Reading, Berks, complained to the Advertising Standards Authority ("ASA").
The mailing enclosed the Autumn issue of the ING Customer Newsletter. The accompanying letter said:
"We currently have you recorded as having opted out from receiving marketing promotions from ING Direct. If you'd like to change this decision and keep up to date about new products and services from us…please call our customer helpline…."
The newsletter contained information about some of ING's products including their "Flexible Mortgage" and "Home Insurance.
The recipient's complaint to the ASA was simple: when she first applied for an ING account, she was offered the opportunity to opt out of receiving promotional material from ING. She took that opportunity and opted out.
Although the mailing was of a "Newsletter" she said it was nevertheless a marketing communication and as she had previously opted out of receiving such material, ING had broken the CAP Code by sending it.
CAP Code paragraph 43.2 c is quite clear on the point. It states that:
Marketers shall take all necessary steps to ensure that marketing communications are not sent to consumers who have asked not to receive them.
ING said in reply that there were two versions of the newsletter.
One version was sent to account holders who, unlike the complainant, had opted in to receiving future promotional offers from ING. This version contained promotional offers such as an offer of M&S vouchers to anyone who took out one of its HomeInsurance policies by a stipulated date.
The other version, which was the one in question here and was sent to those who had opted out, excluded any such promotional offers but still included information about ING products.
ING added that although the mailing in question had resulted in seven complaints, no less than 238 recipients had opted back into receiving marketing communications.
The ASA's finding
Whatever the degree of success achieved by ING in getting previous opt outers to change their minds, the ASA saw no distinction for these purposes between "promotional offers" and product information.
Any communication containing either type of content was in its view a "marketing communication" of the type that the recipient had clearly opted out of and should not have been sent.
The verdict was "complaint upheld."
Why this matters:
This is by no means the first time that marketers asking opt outers if they would like to change their minds have fallen foul of regulators. In this case, this might well have included the data protection watchdog, the Information Commissioner's Office. The use for these purposes of data relating to customers who had previously opted out would also seem on the face of it to create problems under the Data Protection Act 1998.
The end result in each case is, as here, a finding against the marketer, and given these previous cases and the circumstances of this case, the outcome on this point is not surprising. What is more noteworthy, however, is the robust view taken by the ASA on when a "Newsletter" counts as a "marketing communication" and is thereby caught by the CAP Code.
Also of interest is it's the clear rebuff that will be given to any attempt to dance on the head of a pin by suggesting that opting out of "promotional offers" will somehow leave the door ajar to the receipt of newsletters containing product information, shorn of special promotions.