Background
Summary of Council Decision:
Two issues were investigated, both of which were Upheld.
Ad description
An e-mail ad for PCS, a career management consultancy, had the subject header "RE: Your Online CV". Text in the e-mail stated "Dear [name], PCS specialise in assisting mid to senior level professionals secure their next role through our extensive experience in utilising the unadvertised job market, obtained through our successful 14 years of business. As you may recall we are an established career management consultancy with offices across the UK, covering every industry sector, across all disciplines and functions, including both the public and private sector. To enable me to arrange a convenient time for a meeting in your local office please reply to this email with a copy of your most recent CV and availability over the next 7 days and we will be in contact. Alternatively, please visit our website at www.p-c-s.uk.com Kind Regards [name] Client Services".
Issue
The complainant challenged whether the ad:
1. breached the Code because it was unsolicited; and
2. misleadingly implied the advertiser had an existing relationship with the recipient.
Response
1. UK Apollo Group Ltd t/a PCS said the complainant had registered with, and uploaded their CV to, the website www.exec2exec.com, which was also owned by UK Apollo Group Ltd. They enclosed details of the privacy statement from the website, which advised that details may be passed to third parties and other group companies. They said that in registering with www.exec2exec.com the complainant had agreed to the terms and conditions on the website, including their privacy policy. They said they had now suppressed the complainant's details from UK Apollo Group's mailing lists.
2. They said the reference to maybe knowing about PCS already was made because they obtained their details from www.exec2exec.com and PCS also advertised on that website.
Assessment
1. Upheld
The ASA considered that the evidence provided by UK Apollo Group demonstrated that the complainant had registered with www.exec2exec.com in 2010, and that in doing so they would have ticked a box stating "Yes, I agree to the privacy policy". The privacy policy included the statement "Your CV may also be viewed by other divisions of the group if it is thought their recruitment or career management services will be of benefit to you". The CAP Code stated that the explicit consent of consumers was required before sending electronic mail, but that marketers may send unsolicited marketing about their similar products to those whose data they had obtained during, or in negotiations for, a sale. We did not consider that ticking a box that referred to a "privacy policy" was sufficient to establish explicit consent. We acknowledged it was acceptable for marketers to send unsolicited marketing about similar products or services by e-mail provided the consumers details had been obtained in the course of, or during negotiations for, a sale. However, we did not consider that the website www.exec2exec.com clearly identified that they were owned by UK Apollo Group, and that the data was being collected on behalf of them. We also considered that www.exec2exec.com did not make clear its relationship with PCS. We therefore considered that only www.exec2exec.com were entitled to send unsolicited marketing to the complainant on this basis, providing they complied with other Code requirements. We also noted that marketers should take all necessary steps to ensure they did not make unwanted marketing solicitations by ensuring databases were accurate and up-to-date. Because the complainant registered more than two years before they received the e-mail, we considered their database was not up-to-date. We concluded that the ad breached the Code.
On this point the ad breached CAP Code (Edition 12) rules 10.4.2 10.4.2 marketing communications are not sent unsolicited to consumers if explicit consent is required (see rule 10.13) 10.4.5 10.4.5 databases are accurate and up-to-date and that reasonable requests for corrections to personal information are effected within 60 days. and 10.13.3 10.13.3 sending marketing communications by electronic mail (excluding by Bluetooth technology) but marketers may send unsolicited marketing about their similar products to those whose data they have obtained during, or in negotiations for, a sale. Data marketers must, however, tell those consumers they may opt out of receiving future marketing communications both when they collect the data and at every subsequent occasion they send out marketing communications. Marketers must give consumers a simple means to do so (Database practice).
2. Upheld
We considered the ad, and in particular the claims "RE: Your Online CV" and "As you may recall", implied that the advertiser had an existing relationship with the recipient. Whilst we understood that the complainant had registered with www.exec2exec.com in 2010, we noted that was over two years before they received the e-mail and that www.exec2exec.com did not make clear its relationship with PCS. Because the ad implied that the complainant had an existing relationship with PCS and that was not the case we concluded that the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
Action
We told PCS to ensure that any future marketing communications they sent complied with the CAP Code, and that they held explicit consent if required.
