Ad description
An unsolicited e-mail with the subject line "[Recipient name], get life cover from just 5GBP per month" stated, "Is your family at risk? Protect their future from just £5 per month!... If the worst was to happen to you, how would your loved ones cope financially? Too many families don't have life cover. With policies from as little as £5 per month, the greatest gift you can give your family is life insurance ... This e-mail was sent to you because you are subscribed to our e-mail list. If you no longer wish to receive commercial e-mails, please unsubscribe ...".
Issue
The complainant objected to the e-mail because it was unsolicited.
Response
E-smart Media Ltd said they did not send unsolicited e-mails. They said several possible circumstances may have led to the complaint, but because recipients to the e-mails would not be registered with E-smart Media Ltd, but with a list provider, who owned the actual data, they were unable to help directly.
Assessment
Upheld
We noted that, under the CAP Code, marketers were required to obtain explicit consent before sending marketing communications by electronic mail. The ASA noted E-smart Media Ltd's explanation that they were not the owners of the complainant's data. However, we considered they were responsible for ensuring their electronic marketing communications were not sent to recipients who had not provided explicit consent to receive them. Because we saw no evidence of this, and in light of the complainant's assertion that they had not provided explicit consent, we concluded that E-smart Media Ltd had breached the Code.
E-smart Media breached CAP Code (Edition 12) rules 10.4 10.4 Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media. To avoid making persistent and unwanted marketing communications, marketers must do everything reasonable to ensure that: 10.4.2 10.4.2 marketing communications are not sent unsolicited to consumers if explicit consent is required (see rule 10.13) 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 E-smart Media Ltd to ensure that, in future, when sending electronic marketing communications, they could provide evidence of explicit consent.
