ASA Non-broadcast Adjudication: Robert Billington

Complaint

Objection to a commercial e-mail that told the recipient a friend had recommended their service for getting in touch with old friends. The e-mail stated "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 [sic] as they feel it may be of interest to you." The complainant:

1. challenged whether his e-mail address had been submitted to the advertisers' website by one of his friends as claimed and

2. objected that the e-mails were unsolicited.

CAP Code

Adjudication

1. Complaint upheld

The advertiser said he could not reveal any details about who submitted the complainant's e-mail address because of practical and legal restrictions.

The ASA was concerned that the advertiser had not demonstrated that the complainant's e-mail address was provided by a friend. We told the advertiser that if he operated a facility which, by allowing anonymity, did nothing to discourage third parties from requesting the sending of direct marketing to other people, he ran the risk either of misuse, or that recipients would think that no such friend existed and the e-mails were merely spam sent by the website owner. We advised him to consult the CAP Copy Advice team before sending similar e-mails in future.

The e-mail breached CAP Code clause 3.1 (Substantiation) on this point.

2. Complaint upheld

The advertiser said the e-mail was sent via the "tell a friend" link to a business domain name and there was no legal requirement for explicit consent for marketing e-mails sent to those addresses.

We acknowledged that, in this instance, the e-mail was sent to a named individual at an e-mail address registered to a business. However, we noted the e-mail did not relate to business products, but invited people to register on, and subscribe to, a site full of personal details. We questioned why a "friend" would wish to remain anonymous if he or she was confident that the recipient would wish to receive such mailings. We also noted that similar e-mails could be sent from the website to private e-mail addresses and told the advertiser to ensure his database practice complied with the Code on all occasions.

The e-mail breached CAP Code clause 43.4 (Database practice) on this point.