After consultation with the Office of the Information Commissioner, the Direct Marketing rules in the CAP Code now distinguish clearly between business to business and business to consumer communications. The explicit consent of consumers is usually required before marketing to them by e-mail or fax but unsolicited messages sent to business are allowed. The amendments were published and distributed to Code holders in May 2004.

Mobile marketing
The use of mobile phones as a marketing device has become more popular over recent years. As complaints to the ASA about commercial text messages continued, CAP issued new guidelines – the Help Note on Mobile Marketing – to ensure that only those wanting to receive advertising via mobile phones do so.

The guidelines remind marketers of their obligation to comply with the law in conducting mobile marketing campaigns. As with e-mail and fax, the explicit consent of consumers is required before sending a text message, unless the marketer is offering a similar product to an existing customer. The identity of mobile marketers must be clear at all times and the message must include all significant conditions. Other requirements of the guidance include the need for verifiable and explicit consent from a parent or guardian when communicating with children by mobile phone.

Members of the CAP Executive were on hand at the International Direct Marketing Fair at Earls Court to answer questions from marketers about the new guidelines. The ASA and CAP stand at the exhibition was themed around the new guidelines which are available at www.cap.org.uk.

Breaking the rules
A complaint to the ASA from a member of the public about moviechoices.com highlighted the need for explicit consent. The complainant was surprised to receive an e-mail from moviechoices.com because he had never given permission to them to contact him. He was also concerned that the e-mail did not give him the opportunity to opt out of receiving other e-mails from the advertisers.

The complainant’s details had been sold to moviechoices.com’s owners – Home Entertainment Corporation – by a company to whom he had given his e-mail address for marketing purposes and that had subsequently gone into liquidation. Home Entertainment Corporation could not prove that he had given his explicit consent to receiving advertising from a third party. Although they had argued that they believed consent had been given, the ASA told them they had to be certain of explicit consent before sending out future advertising.