Ad description
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.
Issue
The complainant challenged whether the ad breached the Code because it had been sent unsolicited.
Response
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.
Emailing Network SARL t/a Clic-Plan said that the protection of personal data was their priority. They said that they implemented a series of controls to ensure that the processing of personal data by their company and their partners was always carried out in full compliance with the law. They were contracted by the company on whose website the complainant’s personal information was entered to carry out advertising for its brands, using databases from different companies. They said they were taking steps to ensure their contracts were compatible with updated EU data protection regulations. They said that they had several controls to ensure that the treatment of personal data was lawful and legitimate, including a provision that data controllers must provide the evidence that consent had been obtained and that consumers were informed about how their data would be used. They asked data controllers to provide a time stamp, IP address and copy of their privacy policy. The privacy policy in question stated “[company] may sell or transfer individual information to third parties for any purpose in [company’s] sole discretion”. In conclusion, they believed that their procedures were compliant with relevant regulations on the processing of personal data. They would however, take steps to improve them to ensure that consumes were informed of how their data would be used.
Assessment
Upheld
The CAP Code stated that the explicit consent of consumers was required before sending marketing communications by electronic mail.
The ASA noted that the screenshot provided by Lands’ End demonstrated that the complainant had submitted his contact details via the website of a partner of Clic-Plan, who supplied data to their email re-targeting agency. In order to submit this information, the complainant would have had to tick a box next to a statement which read “You understand and agree that you are establishing a business relationship with our network of affiliate partners, and you may be contacted by one of our partners by telephone or mobile using automated dialling or electronic mail. You also agree to our Privacy Policy. There is no obligation for submitting your information”.
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).
Action
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.
