Eversheds e80
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The e-news service from Eversheds
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Explicit Consent

The Advertising Standards Authority ("ASA") last week upheld a complaint against The Training Guild for not obtaining the explicit consent of a customer before sending a marketing email. The email address in question was a personal, rather than a business one.

The ASA administers the Committee of Advertising Practice ("CAP") Code, which sets out the rules governing the content of non-broadcast marketing communications. As mentioned on e80 at the time, the CAP Code was updated in March 2003 to provide that the explicit consent of a consumer is required prior to marketing by email or SMS, unless the e-marketer can benefit from the "similar products" exemption.

The Training Guild sent an email to various customers (including the complainant) for a forthcoming training seminar, with the complainant objecting on the grounds that the necessary consent had not been obtained from him/her. The Training Guild stated that it had bought a list of email addresses, which it had thought were for businesses, not individuals. It also thought that the recipients had opted-in to receiving information about training by email. The ASA acknowledged that The Training Guild had acted in good faith, but that it was still under an obligation to ensure that all necessary consents had been obtained to sending such marketing emails. The Training Guild was advised to take more care in the targeting of future marketing e-mails.

Marketers are obliged to comply with the CAP Code. The requirement for an opt-in consent will be strengthened when the Privacy and Electronic Communications Regulations 2003 (implementing the E-Privacy Directive) (the "Regulations") come into force at the end of next month.

It is important to note that no matter how many warranties and/or indemnities an e-marketer obtains from a supplier of email lists as to what consent the individuals have provided, any action by a customer (under the CAP Code or the Regulations) that has been wrongly targeted, will still be against the e-marketer. The e-marketer will also be unable to avoid being the subject of any bad publicity arising.

Simon Gamlin
simongamlin@eversheds.com
Direct Dial: +44 (0) 20 7919 4689

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