A recent decision by the Advertising Standards Authority on a supposed ‘member-get-member’ viral email campaign brought into focus the CAP Code’s provisions on this popular form of digital advertising and differences between the Code and the law.
Who: Robert Billington trading as "who-remembers-me.com"
Where: The Advertising Standards Authority, London
When: February 2006
A complaint was made to the Advertising Standards Authority by the recipient ("R") of an e-mail from " who-remembers-me.com". The e-mail told R "your e-mail address has been entered into the www. "who-remembers-me.com tell a friend" link by one of your friends in order for us to send you a short note recommending this web site as they feel it may be of interest to you".
R challenged whether their e-mail address had ever been submitted to "who-remembers-me.com" by a friend. He also objected that the e-mail was unsolicited.
The complaint was upheld on both counts.
Who-remembers-me.com said they could not reveal any details about who had submitted R's e-mail address "because of practical and legal restrictions". The ASA was concerned that the advertiser had not substantiated its claim in the email that R's e-mail address was provided by a friend. This meant that the CAP Code "Substantiation" requirement at para 3.1 had been breached.
On the second complaint, "who-remembers-me.com" defended on the basis that the e-mail in question was sent via the "tell a friend" link to a business domain name. It said (correctly) that there is no legal requirement for explicit consent before sending unsolicited marketing e-mails to a company employee's office email address.
In its response, the ASA acknowledged that this e-mail had been sent to a named individual at an e-mail address registered to a business. However, in such cases, regardless of the law, the CAP Code requires that the message must relate only to business products. In this case, the e-mail invited the recipient to register on and subscribe to a site full of personal details, which was clearly not a business service. In these circumstances the Code requirement was that explicit prior consent should have been obtained from R and since "who-remembers-me.com" had not shown that they had this, the Code was again breached.
Why this matters:
The sending of the "who-remembers-me.com" e-mail to R did not breach legal opt-in rules. This was because unsolicited e-mail messages to "corporate subscribers" may be sent without a prior opt-in. In this case all the evidence points to the recipient having been an employee of a limited company, which would be regarded as a "corporate subscriber".
Where "who-remembers-me.com" fell down was in the difference between the law and the CAP Code on this point. Unlike the law, the Code requires that unsolicited e-mails to limited company employees must only relate to business products.
Separately as regards viral marketing, this verdict underlines the need for marketers to follow the Office of the Information Commission's advice on the practice, as contained in their Guidance on the Privacy and Electronic Communications (EC Directive) Regulations 2003. marketinglaw.co.uk recently confirmed this in its March 2006 update. In this particular case, the supplier of the R's e-mail address should have been at the very least asked to confirm that they had R's consent to pass R's email address to who-remembers-me.