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.
The Code states that “except if it is obvious from the context” marketers should not use data they have collected for significantly different purposes without making that clear at the initial collection stage and without offering an opportunity to object. ASA’s adjudications give marketers guidance on how the term “significantly different” is likely to be defined.
In 2004, the ASA upheld a complaint that the free offer of a talisman from a clairvoyant was misleading because respondents’ contact details were included without forewarning in a mailing list (Raylene Van Worth, 21 April 2004). Although the advertiser argued that it did not intend to disclose respondents’ data to third parties or related but legally separate companies, and that the data would not be used for significantly different purposes, the ASA considered that the data were likely to be used by Raylene Van Worth or other trading names within the same group for other marketing purposes (not to promote other psychic services). The ASA concluded that that intention should have been made clear in the ad.
Conversely, the ASA did not uphold complaints against a wine distributor who sent out a mailing asking consumers to respond to a questionnaire with the explicit purpose of surveying opinions about wine. Complainants challenged the distributor’s tactic of asking them to fill in a questionnaire and give their contact details to receive a free “thank you” gift only to contact the consumers later to arrange an appointment for a sales representative to visit; complainants thought that constituted a purpose significantly different from the one originally communicated. The ASA disagreed and considered that the data was obviously collected for no other purpose than to better understand consumer trends in wine buying (Pieroth Ltd, 21 April 2004).
In another instance, a mailing from Halifax (t/a Intelligent Finance) asked customers to supply information about their home contents insurance; the marketer claimed it needed the information as their mortgage provider but complainants suspected the company wanted to use it for marketing purposes. The ASA considered that the mailing had misleadingly implied that the information was essential to the advertiser and had misled consumers about the purpose of data collection. The advertiser agreed not to use the contents insurance data it had collected (Halifax plc, 25 February 2004).
The CAP Copy Advice team is frequently asked whether using data collected through prize promotions (and similar) for future marketing purposes constitutes a “significantly different” purpose. In terms of postal marketing, it is likely to be acceptable to contact consumers without explanation if the promoter either made clear to consumers in the prize draw terms and conditions that they would receive marketing communications or gave participants an opt-out at the time of entry.
If they intend to contact consumers by electronic means using data obtained through sales promotions, marketers may send a one off e-mail or SMS explaining how they obtained the customers’ details and asking whether they would like to receive marketing communications from the marketers. If the consumers do not respond, the marketer should not contact them again (Celltalk plc, 23 June 2004). See ‘Database Practice: Soft Opt In’; marketers should be aware that our advice, based on the cited ASA adjudication, goes further than the Information Commissioner’s guidance on the application of the soft-opt in exemption.
Last modified : 29 June 2010