Ad description
Three emails from Talent Spa giving details of employment and job-seeking services, which were sent to two different email addresses.
Issue
The complainant challenged whether the ads breached the Code because they were unsolicited.
Response
Vertifi Ltd explained that they operated a service called 'iProfile'. They noted that the terms of service stated that 'iProfile' may transfer users' personal data to other entities within the iProfile group of companies and their affiliates, provided that the principal purpose of seeking employment on a user's behalf was not altered. Vertifi stated that the three emails objected to by the complainant all related to employment issues, and that Talent Spa and iProfile were both members of the Vertifi Group. They therefore believed that they fell within this term, to which users of the site had agreed.
Vertifi stated that both of the complainant's email addresses had been entered into their system. They stated that one of the addresses had been removed from the iProfile system some time ago, which they thought was likely to have been due to an unsubscribe request, and that they therefore didn’t have detailed data on this address. They provided a list from their archive of all the times the email address had arrived in their system via an uploaded CV between March 2002 and January 2007, along with the name of the recruiter who submitted it. These recruiters had either posted a job role and had a reply from the address or had obtained a CV with that email address from a job board. The entries also contained the date on which the site's terms of use had been agreed to. Vertifi stated that these dates referred to when the user logged into their iProfile.
With regard to the complainant's second email address, Vertifi stated that the address had not been unsubscribed and provided the details of two roles that had been applied for in late 2014, and the names of the recruitment companies concerned. They also provided two dates on which the profile relating to the email address had been logged in, also in late 2014, and said that the terms of the site were agreed to by a user signing in.
Vertifi explained that the profiles (and, therefore, the email addresses) had been created or updated on their system via job advert responses or from recruiters acquiring the CV from a job board on which it was available. They said that emails with recruiter and iProfile branding were then sent automatically, informing the address holder of the addition each time they were received. They said that the recipient had the opportunity to unsubscribe from the profile at each point, and that the email addresses in question had instead logged in and therefore accepted the terms.
Assessment
Upheld
The ASA noted that the ads related to job-seeking services and were sent from a company affiliated with iProfile, and that in order to create a profile on the site users would need to indicate their agreement with the terms and conditions of the site, which included a provision for data to be shared with affiliated sites. We understood that the advertiser had recorded both profiles logging into the system (and the user therefore agreeing to these terms), but that the complainant stated they had not logged in with the second address. The CAP Code stated that the explicit consent of consumers was required before sending electronic mail, but that marketers may send unsolicited marketing about their similar products to those whose data they had obtained during, or in negotiations for, a sale. We did not consider that ticking a box that referred to the general terms and conditions of the site was sufficient to establish explicit consent to receive marketing emails. We acknowledged it was acceptable for marketers to send unsolicited marketing about similar products or services by e-mail provided the consumers’ details had been obtained in the course of, or during negotiations for, a sale. However, we did not consider that the iProfile website clearly identified that they were owned by Vertifi Ltd, and that the data was being collected on their behalf, or make clear its relationship with Talent Spa.
We understood that the complainant's email addresses had initially been submitted to the site by recruitment companies who would either have obtained the addresses from responses to their job ads or from online CV boards, not from the complainant themself. We also understood that once the email addresses were in the system, alerts would be sent to recipients by email, whether or not they had themselves registered for a profile. By accessing iProfile through these emails, the recipient could then sign into the site using the details already obtained by recruiters, at which point they would agree with the T&Cs. Because the addresses had not been obtained directly from the individuals to whom they belonged and we had not seen evidence that the third parties providing these details had permission from those individuals to pass them to iProfile, we considered that we had not seen evidence that Vertifi had the appropriate consent to send them marketing emails.
With regard to the first email address, we noted Vertifi's statement that they thought it likely the email address had been unsubscribed from their system some time ago and that the address had not been submitted by recruiters or been logged into since 2007. We noted that, the solicitation issue notwithstanding, marketers should do everything reasonable to ensure that marketing communications are not sent to consumers who have asked not to receive them. We considered that if it was the advertiser's understanding that an email address had been unsubscribed from their marketing communications, further mailings should not be sent to such an address. In light of these issues, we concluded that the ads breached the Code.
The emails breached CAP Code (Edition 12) rules 10.4 10.4 Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media. To avoid making persistent and unwanted marketing communications, marketers must do everything reasonable to ensure that: 10.4.2 10.4.2 marketing communications are not sent unsolicited to consumers if explicit consent is required (see rule 10.13 10.13 The explicit consent of consumers (see rule 10.4 10.4 Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media. To avoid making persistent and unwanted marketing communications, marketers must do everything reasonable to ensure that: is required before: 10.4.4 10.4.4 marketing communications are not sent to consumers who have asked not to receive them (see rule 10.5) or, if relevant, who have not had the opportunity to object to receiving them (see rule 10.9.3). Those consumers should be identifiable 10.13 10.13 The explicit consent of consumers (see rule 10.4 10.4 Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media. To avoid making persistent and unwanted marketing communications, marketers must do everything reasonable to ensure that: 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 Vertifi Ltd to ensure that future marketing emails were only sent to recipients for whom they held evidence of the appropriate consent.
CAP Code (Edition 12)
10.13 10.13.3 10.4 10.4.2 10.4.4
