When online DVD rental specialist moviechoices.com bought an apparently ‘opt-in’ email address list from a company liquidator, it thought it was free to send unsolicited marketing emails to the database. But one email recipient complained to the ASA.
Topic: E-mail marketing
Who: Home Entertainment Corporation plc t/a moviechoices.com
Where: The Advertising Standards Authority
When: October 2004
What happened:
An e-mail marketing campaign by on-line DVD rental specialists moviechoices.com backfired when the Advertising Standards Authority ("ASA") held that the campaign had breached the CAP Code of advertising, sales promotion and direct marketing on two counts.
The e-mail promoted moviechoices.com's 30 days free DVD rental offer. The database used for the campaign consisted of 260,000 e-mail addresses moviechoices had acquired from the liquidators of a defunct company.
The complainant from Cambridgeshire had received the moviechoices e-mail and objected to it on two counts.
No permission given
First of all he said that he had never given the liquidated company permission to pass on his details to third parties.
Secondly he said the moviechoices e-mail did not give him the opportunity to opt out of receiving further such messages.
Moviechoices defended the use of the liquidated company's database by referring to their contract with the liquidator. This stated that the owners of all the e-mail addresses on the list had given "opt-in consent" to receive electronic communications from third parties.
The ASA noted this, but noted also the complainant's denial that he had ever told the liquidated company that he was happy for them to pass his details on to third parties. The ASA also commented on the complete absence of contemporaneous evidence of such opt-in consent having been given, either by the complainant or any other of the 216,000 e-mail address owners.
The ASA noted that moviechoices had bought the list in good faith, but all the good faith and contractual drafting in the world could not take the place of hard evidence of consent having been given at the relevant time by the relevant individuals. Accordingly the complaint was upheld on this count and the advertisers were told to acquire the explicit consent of consumers before sending them commercial e-mails in future.
On the second complaint, the advertisers asserted that they normally included an unsubscribe facility in e-mails but that this time it had been omitted by mistake. It followed that the ASA had no alternative but to uphold the complaint on this count also.
Why this matters:
This case underlines the importance of conducting full due diligence in respect of any e-mail marketing list that is acquired, particularly one that is bought from a company liquidator.
Just as the warm words of the liquidator in the sale contract were of no avail to moviechoice in front of the ASA, they would have been of little help also if there had been any regulatory action by the Information Commission under the Privacy and Electronic Communications (EC Directive) Regulations 2003 or the Data Protection Act 1998. Under neither set of rules is it open to a data controller to hide behind the terms of a contract under which it has acquired personal data. If the data controller itself then decides what to do with that data and instigates any processing including use for marketing purposes, it is its primary responsibility to do that in a way that complies with the relevant data protection rules.
