Following an insert in Saga magazine promoting Craftmatic adjustable beds, the ASA considered its own complaint that respondents were not given a proper opportunity to opt out of future email marketing. Stephen Groom opts in to an important decision for all digital marketers.
Topic: Email marketing
Who: Craftmatic UK Ltd
Where: Advertising Standards Authority
When: January 2009
What happened:
In a rare plot twist, the Advertising Standards Authority (ASA) threw out its own objection to an ad.
Most of the ASA cases reported each week deal with complaints about ads by either members of the public or the advertiser's competitors. From time to time, the ASA itself heaves in with its own issue on the ad, but seldom does the ASA then reject its own complaint.
This case is the exception that proves the rule.
Bed insert
The ad in question was an insert in Saga magazine from adjustable bed specialists Craftmatic. It invited Saga readers to take part in a market research study. Text at the end of the research questionnaire said:
"Please give us your name, address and phone number, so that we may contact you by phone, post or email with information about our products. [ ] Tick the box if you do not want your name and address to be disclosed to companies who may contact you about products that may be of interest to you…(Your email will never be provided to any other company, for any purpose)."
The ASA's problem was with whether the insert complied with 43.4 of the CAP Code by providing an appropriate mechanism to allow customers to opt out of receiving further marketing communications by email if they wished to.
Code ambiguity
But the complaint put the spotlight on an ambiguity in the Code.
Under the relevant law, which is in the Privacy and Electronic Communications (EC Directive) Regulations 2003, no such opt out opportunity is expressly required when first capturing an email address except in one case.
This is where the business capturing the data is looking to take advantage of the so-called "soft opt in" rule. Soft opt-in is a way of sidestepping the "prior notification of consent" (or "opt in") rule that mostly has to be complied with before sending marketing emails or texts.
Under soft opt-in, a business can use email addresses or mobile telephone numbers for marketing without a prior express opt-in provided:
- the individual supplying his or her email address is doing so in the course of "negotiations for a sale;"
- all future marketing emails only come from the business capturing the email address;
- the emails only promote that business's "similar goods or services"; and
- the individual is given the opportunity of opting out of receiving future marketing emails by a "simple means," free of charge except for the cost of the transmission of the refusal.
The equivalent passage in the CAP Code is at 43.4 c, but its reference to having to tell the individual they may opt out of future marketing, although it is in the same section as the CAP Code's version of the "soft opt in" rule above, is not crystal clear as to whether the opt out opportunity applies whenever email addresses are being captured (which would go beyond the law) or only in the "soft opt-in" scenario.
Clarification on opt out
This has now been clarified. Craftmatic correctly argued that none of the above applied and there was no need to provide an opt-out opportunity.
This was because they decided on going one step beyond "soft opt in" and aimed instead for full-blown, prior explicit consent to receiving future marketing emails. This, despite the fact that they could if they wished have plumped for the less onerous "soft opt in" procedure set out above.
This was because the scenario would on the basis of published guidance have been likely regarded by the authorities as "negotiations for a sale".
Having gone for broke, Craftmatic achieved prior explicit consent from all those who supplied their email address, it said, regardless of whether they ticked the box. They did this, they argued, by putting the wording explaining what would happen to email addresses supplied immediately next door to the above disclosure.
This meant that by supplying their email address, punters were effectively giving their explicit consent to receiving marketing emails. Once this consent had been given, there was no requirement to then give them an opportunity to opt out of what they had just opted into.
On consideration the ASA agreed and threw out its own complaint.
Why this matters:
This case follows an earlier ASA verdict in 2004 involving Carphone Warehouse where again the lack of a ticked box led to a complaint.
On that occasion, the advertising channel was mobile telecoms and the wording against the space for non compulsory insertion of one's mobile phone number was "Some reputable companies may prefer to communicate offers to you on your mobile phone."
Again the verdict was that given the clear meaning of the disclosure against the location for insertion of the digital address, the simple act of inserting the address amounted to explicit consent.
So unticked opt-out boxes or ticked opt-in boxes may not be needed before commercial emails or texts can be sent. It is just a matter of devising a mechanism for indicating clear consent.
