Background
Summary of Council Decision:
Two issues were investigated and were Upheld.
Ad description
An e-mail from a social club promoting upcoming events, received on 8 November 2011, stated "... You are receiving this email because of your connection with Julia Frater former Head of Visit Tees Valley".
Issue
The complainant challenged whether the e-mail breached database practice clauses of the CAP Code because:
1. their email address had been transferred to a third party for direct marketing purposes without their consent; and
2. they had not given explicit consent to receive such marketing communications.
Response
1.& 2.
Bon-Amis explained that their only form of marketing was a weekly e-mail about upcoming events sent to a mailing list of about 750 individuals, many of whom were friends and aquaintances of the founder of Bon-Amis, Julia Frater. Bon-Amis had been sending weekly e-mails to their mailing list since February 2011 and every e-mail contained a facility to unsubscribe. Approximately 250 individuals had unsubscribed since February 2011. Bon-Amis said they had no record of the complainant and did not know how he had come to receive their e-mails. Their web designer had checked the initial mailing list and he had not featured on it. Bon-Amis said it was possible that the complainant had come to the launch party in March 2011 and that is how his e-mail address was obtained. They said that if he was receiving their e-mails, he could have unsubscribed at any time and they were surprised he had not. The founder of Bon-Amis had previously worked for a local tourism organisation, Visit Tees Valley, which no longer existed. She had made enquiries about the complainant with her former marketing colleagues there and none of them had heard of the complainant.
Assessment
1. & 2. Upheld
The ASA noted Bon-Amis' comments that they did not know the complainant or how his e-mail address had been obtained and their web designer had confirmed that the complainant did not feature on the initial mailing list in February 2011. However, we noted it was clear from the e-mail that it had been sent to the complainant's personal e-mail address and that it stated "You are receiving this email because of your connection with Julia Frater former Head of Visit Tees Valley and or have signed up to recieve [sic] information via www.bon-amis.com". We understood from the complainant that he had had a business relationship with Visit Tees Valley several years ago and that the e-mail from Bon-Amis was unsolicited. We also noted that Bon-Amis had not been able to provide evidence to show how the complainant's e-mail address had been obtained and whether he had given his explicit consent to receive e-mail marketing communications from Bon-Amis. We considered that the e-mail was unsolicited and the e-mail address had been transferred from Visit Tees Valley to Bon-Amis for direct marketing purposes without consent, and for these reasons, we concluded the e-mail breached the CAP Code.
The e-mail breached CAP Code (Edition 12) rules 10.12.1 10.12.1 the disclosure of personal information to third parties for direct marketing purposes 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).
Action
We told Bon-Amis to ensure that they hold explicit consent from every person on their mailing list before sending out further marketing communications by e-mail.
