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.
Because marketing communications sent using electronic media are subject to much more burdensome consent requirements, the Copy Advice team has received enquiries about consent for third-party advertisements carried by subscription services using electronic media. For example, an individual uses a local business search service that delivers an address to his mobile phone by SMS and is accompanied by an ad that he did not consent to receive. Or an individual subscribes to a game and receives an ad for another product with the game.
We also get enquiries about host e-mailing, for example where a customer of one marketer is sent third-party advertising together with a marketing communication sent by the initial permission holder. That practice is subject to opt-in requirements; the soft opt-in exemption does not apply. For example, if a customer of the Daily Telegraph is sent a marketing e-mail by the Daily Telegraph and it 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 such third-party advertising. As with all electronic marcoms, even if explicit consent had been given, an opt-out mechanism for the third-party advertising should be offered in every communication.
The ASA has yet to investigate a complaint about the sending of third-party marcoms but would probably consider it as “sending marketing communications by electronic mail [i.e. e-mail, SMS, MMS and other data transfer methods]” as expressed in the Definitions of the Database Practice section and Rule 10.13.3, despite its inclusion within a subscribed product and despite those practices not involving the use of data by the marketer whose products were being advertised. If the marketing material offers a similar service to the subscribed product, that similarity would render it subject to the soft opt-in requirements; but the products and services would have to be similar to those provided by the original data holder (that is rarely likely to happen for marketers passing on third-party advertising, because it would mean they were promoting their competitors’ products). In all other instances, the explicit consent of consumers is required for them to receive marketing material created by a third party. Marketers providing subscription services should include relevant opt-out route over and above any opt-out statement in relation to the termination of the subscription service. See ‘Consent (Explicit)’ and ‘Consent (General)’.
CAP understands from the Information Commissioner’s Office that it might be acceptable for marketers offering subscribed products (as defined above) to obtain explicit consent to send those products by e-mail or to mobile devices accompanied by third-party advertising if the terms and conditions of the service made clear that advertisements would be sent as part of that service. For example, a service offering local business searches could ask in the initial advertising literature for consumers requesting a search to agree to receive ads with their results and later offer them the opportunity to refuse to receive other advertising. CAP also understands that, for host e-mailing, it should be acceptable for a marketer to offer a one-off opt-in for third-party marketing communications in general.
Last modified : 29 June 2010