A stark reminder for new businesses who are reaching out using marketing lists to sell their products.
Background.
DGE was promoting its hand cleaning products “Zoono” claiming that these were “effective against coronavirus” by sending text message marketing to groups of individual (consumer) contacts. The marketing lists were made up of:
-Data scraped from an online marketplace account belonging to its Director;
-Data obtained via social media adverts (which purported to offer free samples and then automatically opted individuals in to receiving direct marketing); and
-Expressions of interest in eBay offers on the Director’s account page.
ICO decision
The ICO acknowledged that whilst DGE obtained the data for its marketing lists from a number of sources, none of these were considered adequate as they did not obtain the valid consent required under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”) rules before text messages were sent to individuals.
In addition, where contact data was obtained using social media adverts (issuing free samples and then automatically opting individuals into direct marketing) this did not amount to a “valid opt in” under PECR rules and therefore DGE was in breach of Regulations 22 and 23 of PECR. This makes it clear that “Opt Ins” should not be “automatic”.
Penalty
Breach of the direct marketing rules resulted in a significant £60,000 fine for DGE. The ICO also stated that DGE had provided unclear and inconsistent explanations for its marketing practices and could not prove that it had received consent from individuals to send the marketing text messages.
Future Considerations
Andy Curry, head of investigations at ICO: said that the ICO will “prioritise action on organisations carrying out similar activity.” Direct marketing laws, he added, are clear and businesses must ensure they comply as: “Ignorance of it or attempting to rely on vague and misleading evidence in support of a marketing campaign simply does not wash.” (Source https://www.theregister.com/2020/09/24/ico_fines_biz_sanitiser/)
For assistance on direct marketing rules and/or PECR guidance:
In the first instance we recommend reviewing the ICO’s guidance on its website here: https://ico.org.uk/media/1555/direct-marketing-guidance.pdf
For more tailored advice please contact us and we’d be happy to help.