Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Explicit consent is sometimes required before sending unsolicited marketing material (Rules 10.12 and 10.13)
Rule 10.12 is self-explanatory and deals with disclosing information to third parties or using it for a purpose significantly different from that for which it was collected (see also ‘Collecting and Retaining Data’; ‘Purpose of Data Collection’; ‘Passing Data onto Third Parties’). But the application of Rule 10.13 has generated many enquiries to the Copy Advice team, especially about e-mail and SMS marketing. In response, CAP issued a Help Note on Mobile Marketing in May 2004. The ASA has only recently started to adjudicate on explicit consent and our advice might change. Marketers should remember that obtaining consent is the subject of legislation and the CAP Code differs slightly from the law. Marketers might want to seek legal advice or contact the Information Commissioner (www.ico.gov.uk). Trade associations, such as the Direct Marketing Association (www.dma.org.uk) and the Mobile Marketing Association (www.mmaglobal.com), have codes of practice that cover obtaining consent.
“Opt-in” or “subscribe” is used to describe where a marketer is required to get permission (or “explicit consent”) from consumers before sending them unsolicited direct marketing. Consumers must usually opt-in to having their data used for unsolicited direct marketing purposes via e-mail, SMS and fax and those other instances specified by Rule 10.13 (Prestige & Performance Trade Sales, 30 March 2005; Planet Pharmaceuticals, 7 June 2006, and World Networks, 14 February 2007).
“Explicit consent” is consumers actively agreeing consent by taking positive action to receive the marketing material described. Whether or not marketers intend to market to existing customers, it is good practice to obtain explicit opt-in consent. The easiest way of ensuring they have explicit opt-in is for marketers to offer individuals tick boxes with wording such as “Yes. I want you to send me by e-mail [or SMS] other great offers you have” or “We would like to send you more about XXX. Tick here if you would like us to contact you by e-mail” or similar. Alternatively marketers could include statements close to where consumers give their e-mail address or SMS number such as “Please provide your e-mail address or mobile telephone number in the spaces below if you are happy to receive marcoms via e-mail or SMS”. If marketers seeking consent intend to send marketing material under other trading styles (although parts of the same legal entity), those trade names should be clear before consumers provide consent. Separate opt-in statements for each trading style would be acceptable.
Marketers should remember that explicit consent is also required for sending marketing communications by fax to consumers (Rule 10.13.2) and for sending non-live-sound marketing communications by automated calling systems (Rule 10.13.4) (Twentieth Century Fox Home Entertainment Ltd, 12 February 2003).
One of the first ASA adjudications about explicit content was one in which the promoter had bought a list compiled from a survey. The list provider pointed out that respondents were invited, but not required, to provide their mobile phone number when completing the survey. It argued moreover that the survey stated “Some reputable companies may prefer to communicate offers to you on your mobile phone” and that respondents would realise that, by providing that information, they were agreeing to receive marketing communications. Because respondents were told directly alongside the field in which they should place their mobile number that some companies might contact them for marketing purposes, the ASA considered that the survey made clear that respondents were likely to receive offers by text message and they had, therefore given their explicit consent (Carphone Warehouse Ltd., 17 March 2004).
The wording of an opt-in does not necessarily need to be media-specific but marketers who, for example, leave messages on voicemails should bear in mind that recipients could have a legitimate complaint if they have to pay to retrieve that message. The ASA upheld complaints about a mobile-phone message for a film, Minority Report. One of the objections was that some recipients had to pay to retrieve the message, which they did not know was an advertisement (Twentieth Century Fox Home Entertainment Ltd, 12 February 2003). Marketers considering that type of marketing should tell recipients that they could incur a cost to receive their message.
Marketers will note that the ASA investigated the data user, not the data owner.
If a marketer sends unsolicited marketing messages via e-mail or SMS to consumers whose e-mail address or SMS number has been obtained from a third party, the marketer must ensure that the message contains:
1) the identity of the marketer and an “address” such as a web address or text-back channel that allows consumers to contact the marketer.
2) A subscribe or opt-in mechanism by which consumers can signify their consent to receiving unsolicited direct marketing via e-mail or SMS from the marketer who sent the e-mail. If a consumer does not opt-in, the marketer should not send other unsolicited marketing messages and should place the consumer on their in–house e-mail and or SMS suppression file.
The Copy Advice team has received enquiries about marketing by Bluetooth and how marketers should respond to the need to obtain explicit consent for that type of marketing. Although the ASA has yet to investigate a complaint on the subject, we understand from the Information Commissioner’s Office that the Privacy and Electronic Communications Regulations do not cover sending advertisements via Bluetooth because Bluetooth is not a communications network capable of storing data. We understand that the Directive is under review. Marketers are strongly urged to contact the ICO for guidance or refer to the guidance available on the Direct Marketing Authority’s website at http://mobile.dma.org.uk/sectors/mmk-faq.asp.
Marketers should note the Code clause dealing with “explicit consent” for electronic direct marketing originates from and reflects legislation that is intended not only to regulate the use of personal data by a data holder but also to ensure that marketing communications are sent only with relevant permission. As a result, the ASA could consider complaints under Rule 10.13 in relation to marketing communications that might be distributed without the marketer’s knowledge or direct use of consumers’ personal data but be accessed on an individual’s mobile device or through their e-mail.
One example of that might be the practice of host e-mailing (a customer of one marketer is sent third-party advertising together with marketing sent by that initial permission holder), which requires opt-in because the soft opt-in exemption does not apply. For example, if the Daily Telegraph sends its customer a marketing e-mail that contains an ad for Sky broadband, the customer should have been told when he subscribed to marketing e-mails from the Daily Telegraph that he would receive third-party advertising. As with all electronic marketing, even if explicit consent has been given, an opt-out mechanism for the third-party advertising should be offered in every communication.
The same advice applies to ads that appear when individuals accesses the Internet on their mobile phone through a provider’s portal and are tailored specifically to that individual’s profile. It also applies to ads that are played instead of the ringing tone an individual usually hears when calling another person. Those types of direct marketing do not require the marketer to know the individual’s phone number to expose them to advertising – the marketer is not the data holder. Nevertheless, at present we consider that those types of marketing would be subject to explicit consent requirements. At the very least, one-off consent to receiving marketing communications via e-mail or mobile phone in principle should be given by the consumer to the original data holder.
Last modified : 06 August 2010