An email from Lands’ End, a clothing company, received on 10 October 2016, stated “Hello [complainant’s name]. Thank you for visiting landsend.co.uk” and included various product listings.
The complainant challenged whether the ad breached the Code because it had been sent unsolicited.
Lands’ End Europe Ltd said that the email was drafted by them and sent via an email re-targeting agency, using an email address provided by a company called Clic-Plan. Clic-Plan had obtained the complainant’s consent to receive third-party email marketing communications through one of their other partners, a website which gave consumers access to offers on a variety of products. The agency used by Lands’ End required that Clic-Plan’s partners obtain an opt-in from users to receive third-party email marketing communications and respect unsubscribe requests.
Lands’ End provided a screenshot from their records showing when the complainant had submitted his details to the partner website. They believed that the statement next to the opt-in box on the partner website made clear that the complainant was giving his consent to receive email marketing from third parties. They therefore believed that the marketing communication was not unsolicited.
The CAP Code stated that the explicit consent of consumers was required before sending marketing communications by electronic mail.
While we considered that consumers would likely understand that to mean that they were consenting to receive emails from third parties, we noted that it referred generally to “our…affiliate partners” and did not make clear the nature of those third parties or the types of communications that consumers might receive from them. There was no clear connection between the types of products or services provided by the website the complainant signed up to, which offered deals on a wide range of products, and those provided by Lands’ End. We therefore considered that the complainant would not have anticipated receiving marketing communications from Lands’ End as a result of submitting his details to the partner website. We understood that the complainant’s personal information had been submitted through a third-party website and had been transferred to Lands’ End’s email marketing agency via Clic-Plan. However, we considered that Lands’ End had primary responsibility for ensuring that their marketing communications complied with the advertising Codes, and should be able to demonstrate that consumers had provided explicit consent to receive marketing communications from them. We concluded that the complainant had not given his explicit consent to receive marketing communications from Lands’ End and that the ad therefore breached the Code.
The ad breached CAP Code (Edition 12) rules 10.13 10.13 The explicit consent of consumers (see rule 10.4) is required before: 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).
We told Lands’ End Europe Ltd to ensure that future marketing emails were only sent to those for who they held evidence of the appropriate consent.