Who: The Information Commissioner’s Office (ICO) and American Express Services Europe Limited (Amex)
Where: United Kingdom
When: 20 May 2021
Law stated as at: 3 June 2021
What happened:
The ICO has fined Amex £90,000 for sending over 4 million marketing emails to customers that had opted out of marketing. The emails included details about the rewards that customers receive when shopping with their Amex cards and encouraged customers to download the Amex app. While Amex claimed that these emails were service emails about their product (and did not review their practices when it received customer complaints), the ICO held these to be marketing emails and referred to its guidance on direct marketing.
The ICO’s direct marketing guidance covers any advertising or promotional communication to an individual but excludes any genuine service messages about the products that they are receiving. Examples of service messages include communications to notify customers about downtimes, updates to any goods or services, changes to the terms and conditions, safety information or other information that the customer needs to receive about their product.
By including marketing information in a service communication, the entire communication will be captured as a marketing communication and subject to the applicable marketing laws and regulations, including the Privacy and Electronic Communications (EC Directive) Regulations 2003 if conducted electronically. In its statement, the ICO encouraged businesses to review their procedures in place and familiarise themselves with the difference between service and marketing emails. We would suggest business ensure that their service communications do not inadvertently include marketing communications to avoid a run in with the ICO.
Why this matters:
The fine against Amex was not a surprise in light of previous ICO enforcement action in a similar case in 2019. The ICO has made it clear that businesses need to ensure that their customer communications do not include marketing if the communication is to be deemed a service email, but any customer incentives that provide a benefit to the business will likely be deemed a marketing communication. The ICO referred to its guidance regarding the difference between service emails that contain routine service information (including maintenance or changes to the terms and conditions) and marketing emails that aim to advertise a product or service. Businesses should be aware that including marketing information within a service email, will not permit the business to circumvent marketing opt-outs from their customers.
