May 2004
Carphone Warehouse spam ruling reversed
The Advertising Standards Authority ("ASA") has overturned its own decision relating to Carphone Warehouse's unsolicited text messaging. The ASA decided that Carphone Warehouse's use of a marketing list was fair because explicit consent was obtained even though the people giving that consent did not tick a box giving that consent. Instead the information they gave was enough to amount to explicit consent.
The ASA received a complaint from an individual who was claiming that the text message was sent without his consent. The disputed message was sent to people who had taken part in a National Shopper's survey. As a part of the survey, participants provided their mobile phone numbers and were offered a chance to opt out of receiving marketing communications from third parties. Carphone Warehouse defended its actions arguing that by not opting out the complainant had given his permission for his details to be used.
Carphone Warehouse argued that people completing the National Shoppers' survey would not have given their mobile phone number unless they were willing to receive marketing promotions. It explained that the survey had made it clear that respondents did not have to answer all questions, and it also stated alongside the request for a mobile phone number: "Some reputable companies may prefer to communicate offers to you on your mobile phone." Carphone Warehouse successfully claimed that it had obtained respondents' explicit consent to receive offers on their mobile phones.
Briffa Comment:
The ASA is an independent, self-regulatory body for non-broadcast advertisements, sales promotions and direct marketing in the UK. E-marketers have welcomed the ASA's decision, which seems to allow more leeway for sending direct marketing communications. However clients should not take this decision in isolation. The rules governing electronic marketing communications are many and far reaching - the principal requirement being that explicit consent must be obtained before sending electronic marketing communications. This decision shows that there is more than one way to get this explicit consent.
For more information on data protection please visit the Information Commissioner's web site at www.informationcomissioner.gov.uk