Direct Marketing Commission - Enforcing Higher Industry Standards

Data & Marketing Commission

We Breathe Media – Complaints about direct marketing

11th December, 2023 at 11:51am

This case looked at concerns raised by a complainant who was in receipt of a number of unwanted emails. The member runs an affiliate network and the affiliate had sent out emails frequently to the complainant promoting different brands.  It appeared that only one of the brands involved was connected to the member’s network.

The individual said he did not opt-in to the original data collection point – a prize competition website; that he had attempted to unsubscribe repeatedly using the opt-out/unsubscribe button; and that he was passed from the brand to the member at which point he said he attempted contact with the member on many occasions. 

The member informed the Commission that it would be detrimental to their business for the unsubscribe mechanism not to work on their campaigns, and if there were over 2% of unsubscribes then this would result in a campaign pausing.  They did accept however that the individual said he had tried to repeatedly opt-out using the unsubscribe button.  The Commissioners also noted that the complainant had continued to receive emails even when the member’s client/brand informed him that his details had been removed from the affiliate partner’s database. The Code, rule 1.2 below, references the requirement for members to operate and maintain an in-house suppression file.

The Commission’s investigation also led to findings around the consent mechanism at the data source.  These related to GDPR rules around the permission statement from the data supplier to the affiliate and the lengthy privacy notice linked to emails received from the affiliate.  Additionally, the Commissioners did not see evidence of a contractual agreement in place with the affiliate.  Rules 4.1;4.3;4,6;4.8 below were upheld.

The Commissioners took into account that the member had previously enlisted the help of a compliance consultancy to help them meet GDPR requirements and that in the light of this complaint they had paused their relationship with the affiliate.     The Commissioners thought it vital that the member implement changes to ensure all parties associated with its network were compliant to reduce the risk of further complaints.  The Commissioners asked for a report in three months’ time which included a template contractual agreement, precise complaint statistics and details of other changes implemented as a result of the Commission’s findings.

Code Rules:

1.2 Member must operate and maintain an in-house suppression file -including the least amount of contact detail to identify consumers who have indicated they do not wish to receive commercial communications via all or particular channels. This includes receivers of third-party communications who have indicated at the first contact that they do not want to receive further communications.

4.1 Members must act decently, fairly and reasonably, fulfilling their contractual obligations at all times.

4.3 Members must accept that in the context of this Code they are normally responsible and accountable for any action (including the content of commercial communications) taken on their behalf by their staff, sales agents, agencies, marketing suppliers, sub processors and others.

4.4 Members acting as an agency or supplier for a non- member’s one-to-one marketing activity must advise the non-member to act within the Code. If the non-member client does not take that advice, the member must insist as a condition of acting for the non-member that the Code is followed in respect of all relevant work.

4.6 Members must maintain adequate records to demonstrate compliance with the Code – and must maintain an adequate system of monitoring and audit.

4.8 Members must at all times give prompt, efficient and courteous service to customers – and must ensure they have in place adequate administrative procedures and resources to achieve this.