Direct Marketing Commission - Enforcing Higher Industry Standards

This case related to complaints from two customers who were members of one of Rocket Marketing Group’s savings club schemes. Once they were established members, Rocket had sent them a letter offering an additional product.  The letter had stated that if the customers did not cancel within a specified time frame then monies would automatically be taken from their billing accounts for that product.  The Commission decided there had been a breach of Code clause 8.1 in relation to inertia selling because Rocket were making charges for participation in these additional services without an instruction from its customers. The Commission thought it was not sufficient to base charging on passive consent from customers who did not act to cancel a payment rather than having a mechanism for securing active consent.

The Commission concluded that the initial offering, at the point of sign-up to membership, did not give customers clear information as to the commercial and financial nature of future messages. As such it was thought to be in breach of Code clause 8.2b which states that members should make clear, either in the original advertisement or with the initial supply of goods sent on approval, the full terms of the contractual commitment in to which a respondent was being asked to enter.

Additionally, in the case of one complainant who had received an offer for a computer security and repair scheme, the Commission decided the commercial communication was misleading and therefore a breach of Code clause 6.6 in that it appeared to present the UK service as equivalent in all important regards to an established US version of the same service when the UK version had significant limitations in relation to helpline support.

The Commission met with Rocket as part of the adjudication process and understands Rocket aree willing to make changes to their processes to address the concerns raised. The Commission asked Rocket to provide a review of remedial actions being taken, together with a timeline for any other changes to be made in order to comply with the Code in future.

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This case related to complaints from consumers who had made an order over the telephone for a product advertised on a television shopping channel. At the time of order they had been additionally sold a free trial for one of Rocket’s annual membership discount schemes. Concerns had been raised about the vulnerability of the consumers, the processes employed to sell an additional product or service when taking an order which had led to confusion in terms of the agreement, and the resulting wish of the consumers to cancel. The Commissioners concluded that based on the evidence presented, the member was not in breach of the Direct Marketing Code, and the complaints were not upheld. They were concerned, however, that Rocket should have sound arrangements in place when relying on partners or suppliers to tele-market and take orders.

The company was reminded of its obligations under the Direct Marketing Code of Practice, clauses 3.13 which asks that members must be normally responsible for any action taken on their behalf by their suppliers, and 3.26 which asks members to take all reasonable steps to protect vulnerable consumers.

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The complaints brought to attention of the Direct Marketing Commission in relation to B2B Data Lists Group/Data Providers UK involved breaches of fundamental Code provisions, and the Commission concluded that the appropriate sanction would be to recommend to the DMA, that the company were removed from DMA membership.  In the period from October 2010 the Direct Marketing Commission received ten complaints over data supplied by the company. Each complaint related to a different contract of supply with the company, ranging across a variety of data sectors. In two cases matters were closed informally.  The member was given reminders of its obligations under the DMA Direct Marketing Code of Practice clauses 9.26 (dealing promptly, efficiently and courteously) and 5.74 (supply of accurate information on data).

With the arrival of four subsequent and separate complaints the Commission initiated formal procedures. The first of these complaints related to an order of a list of IT Training Managers and the claim from B2B Data Lists Group/Data Providers UK that they had a list which corresponded with the exact requirements. The second complaint concerned a consumer who had received an unwanted email and had requested further information as to the origins of the list used so he could ascertain how his data was sourced. The third complaint related to an order of data which the complainant claimed was incorrect and the fourth complaint related to a claim that B2B Data Lists Group/Data Providers UK did not meet their specifications for a list of 35,000 decision makers in private equity owned companies.

Following investigation including contact with B2B Data Lists the Commission reached a conclusion that 1) the company had breached key provisions of the Code on a repeated basis; 2) data was sold without proper regard for whether it met client requirements, and that the company then sought through unacceptable terms and conditions to absolve itself of responsibility for this data; 3) refunds were being refused or offered as a last resort and 4) clients and complainants were treated poorly. All four complaints raised were upheld and related to clauses 5.74 which asks that information supplied about data is accurate and not misleading or incorrect; 9.33 which asks that members should settle complaints quickly, effectively and courteously; 3.13 which asks that members must accept that they are normally responsible for any action taken on behalf by their staff, their sales agents, their agencies, their direct marketing suppliers and others; and finally clause 3.19 which asks that members act decently, fairly and reasonable fulfilling their contractual obligations at all times.

In addition to the formal cases and the earlier cases that were resolved informally the Commission has received recently some other complaints over B2B Data Lists Group/Data Providers UK. While no assumptions can be made about these complaints it was a particular concern to the Commission that the issues described were clearly happening with regularity. The Commission was of the view that the complaints involved breaches of fundamental code provisions on fair and reasonable behaviour, the accuracy of information about data and the responsibility members must take for data they source elsewhere and the requirement to provide proper customer service. The Commission decided that the appropriate sanction would be to recommend to the DMA, that the company were removed from DMA membership. This proposal has now been implemented by the DMA – please see here for a link to details of the expulsion on the DMA website.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This complaint from a business related to an order of data for 10,000 records.  The data had been used to send out a letter to recipients asking if they wished to give up smoking.  There had been a large number of letters returned as ‘not based at this address’ and many complaints from people who had received the letter addressed to deceased individuals.   The Commission concluded that the member’s terms which stated that with third party lists it would replace all records with an inaccuracy above 10%, appeared to be in direct conflict with the provisions of the Code (clause 5.73) because if data suppliers anticipate that the percentage of goneaways exceeds 3% for a responder list or 6% for a compiled list, the data user must be informed, and if the percentage exceeds the limit without prior notification then members should have in place a policy of reimbursement.  The Commission concluded that the personal data held was not accurate and up to date (clause 5.37). Under the terms of the Code, the member was responsible for any failure of their supplier to comply with this clause.  Overall, the Commission thought that the sensitive issues relating to health should have prompted the member to take particular care to ensure its supplier had acted with care in relation to the deceased being included in the data provided.  It had been noted, however, that the member had now been offered a full refund.

There had also been a secondary complaint which related to a purchase of 2,000 records of hairdressers with websites. The complainant claimed that out of 140 samples taken from the initial delivery of 500 records, only 24.6% of the data was usable as websites either did not work or did not have any association with the record it connected to.  Additionally, the complainant claimed that the data was delivered late.  The Commission upheld a breach of clause 3.19 which asks that members act fairly and reasonably because of the delay in delivery and an initial refusal  to consider reimbursement.  In general however, the Commission was grateful for the way in which the member responded to its investigation and to the issues identified.  The company arranged for the necessary reimbursements and has undertaken to review its  customer service arrangements, its contractual terms and conditions and their compliance with the Code and the robustness of its arrangements for sourcing data from third parties.  The Commission has requested a report of the reviews and actions taken.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This case related to telemarketing activity undertaken by Phruit. The Commission investigated following a complaint from an individual consumer who was registered with the Telephone Preference Service (TPS).  The consumer had been contacted with the offer of will-writing services having previously been contacted by Phruit in what seemed to be a lead-generation exercise carried out in the guise of research.  The investigation involved contact with the original complainant, a review of  TPS and other web-based complaints and an attempt to validate compliance with TPS cleansing. Over 100 complaints involving people who had registered with TPS were attributable to Phruit directly or to companies using their data. The Commission had access to over two years of dialogue between the DMA’s compliance team and Phruit that was anchored in ongoing concerns over TPS compliance and the misrepresentation of research.

Based on the evidence presented – including a number of admissions by the company – the Commission reached a view that the company had been misrepresenting itself as a researcher when making calls that were really designed to sell goods or services. The practice was found to be the cause of the considerable number of public complaints over what was seen to be Phruit’s cold-call marketing. This, in turn generated subsequent complaints when UK firms used Phruit data and called TPS subscribers in the possibly misplaced understanding these people had opted-in to receiving marketing calls. While Phruit responded in part to some questions the company failed to provide key data and information over its TPS practices and its commercial arrangements.

The Commission found Phruit in breach of the following provisions of the Code – 21.18 and 21.20 on TPS compliance and data cleansing, 3.11 under which Phruit has a responsibility for compliance by suppliers and 3.18 on “sugging”: marketing in the guise of research.  The Commission decided this was a very serious case involving fundamental code provisions on TPS compliance, misrepresentation and the failure to ensure contractors were code-compliant. The Commission proposed membership of the DMA be suspended for a period of at least one year and that the lifting of this suspension thereafter be conditional on evidence from Phruit of action taken to ensure compliance with the Code of Practice.   This proposal has now been implemented by the DMA – please see here for a link to details of the suspension on the DMA website.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This door to door complaint related to a claim by a business that their leaflet to 16302 properties was not delivered satisfactorily.  All parties had undertaken back-checking and it was clear that some evidence had been provided to show delivery had taken place, though there were differences in the data and in the timeframes over which this was collected.  The Commission recognised that 100% delivery cannot be guaranteed and a number of factors can affect recall of an item. These include who is interviewed and the timing and performance of the checking and the nature of item, and its design and impact.

Based on the materials available, the Commission did not feel it could uphold a breach of the Code relating to conduct and contract fulfilment.  The Commission did however, note the critical importance of advice given to the client at the outset about back-checking practice and were assured that this was an area which would be reviewed by the member company to ensure client expectations were effectively managed.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This complaint related to a claim from a business that information online lacked an element of specificity and detail. The company in question had amended their website once the complaint was raised, and in addition, offered a full refund. In conclusion, the Commission did not consider that there was a deliberate attempt to mislead clients, and did not uphold the complaint under clause 3.17 which asks that members act decently, fairly and reasonably. A full refund had been offered and there had been no further complaints.  However, there were claims from the complainant that the revised edition of the website was still not sufficiently clear, and as this aspect of the case fell more appropriately under the auspices of the Advertising Standards Authority (ASA), the complainant was advised to take his complaint further with the ASA if required.  Complaint not upheld.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This complaint from a business related to an order of email records for which there had been a high hard bounce rate.  Following discussion, the Commission concluded that Intelligent Data’s measures for managing and cleansing data overall appeared generally satisfactory.  The company had now offered a  refund to the complainant at his request, and the case was considered resolved and closed.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This complaint from a consumer related to unwanted marketing mailings received.  BT had suppressed the consumer’s details when she first complained.  However, the consumer then received a second unwanted mailing due to a timing issue in that the direct marketing received was the output made two days previously to her being added to the suppression list.  A third mailing had then been received which was the result of an external data mismatch.   The Board noted that BT had agreed to review their external data process and make improvements to ensure this type of issue did not occur.  Should this type of complaint against BT become more prevalent we would further investigate their procedures.  BT were, however, formally reminded of their obligations under the Code to suppress, as soon as possible, a recipient’s data from their marketing database should that customer request not to receive any further commercial communications. Reminder of obligations under the Code.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This complaint from a business related to an order for 4,700 email marketing contacts.  The complainant claimed that it had been agreed that the mailing lists would be for decision makers in those companies.  However, only 3,128 records were received and the complainant had been advised he had 1,572 credits on his account though he claimed he had never agreed to a credit.  Additionally, having analysed the data, he also had several concerns about the quality of that data, particularly in relation to the percentage of ‘generic’ emails.  The Board of the Commission examined the materials from both parties and concluded that there was no evidence to show that the order had not been carried out reasonably, and that no documentation from either party provided evidence of a breach of the Code of Practice.  Complaint not upheld.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This complaint from a number of advertisers related to a door-drop delivery of a Your Town Lichfield. It was based on the concerns of a number of businesses who had taken advertising space in the directory that there was a failure in terms of the delivery. The Commission concluded on the balance of probability that there had been a breach of Clauses 3.17 and 3.21 of the DMA Code of Practice and reminded Yell of the obligations on members of the DMA . The Commission welcomed the actions taken by Yell to address the concerns of all those advertising in the directory in question.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This related to a sales call during which a consumer agreed to sign up to a three month trial period. The consumer did not wish to proceed beyond the trial period, but claims monies have been taken from his account without his consent. This complaint was upheld as it is a breach of direct marketing standards not to address consumer and business complaints. Complaint upheld.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This complaint related to a door-drop delivery of 4,500 leaflets. Whilst the company who made the complaint understood that their leaflets would be distributed with the leaflets of two other companies, they alleged there were a number of different leaflets which they claimed the distributor inserted inside a magazine. The Commission concluded that Tudor’s documentation did not show a limitation or guarantee for the number or types of items to be delivered at the same time, and no evidence was found that they had deviated from their standard contract by accepting other items to be delivered at the same time. However, their services document clearly stated that items would not be tucked inside something else, and it was felt that this would have raised a reasonable expectation that the leaflet would not be tucked inside another item. The Board therefore upheld this aspect of the complaint under clause 3.17 of the Direct Marketing Code of Practice which relates to fair behaviour. Complaint upheld.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This complaint related to the receipt of unwanted marketing emails despite the consumer having opted-out. Following investigation, the Commission were informed that this was due to a data mapping error with a maximum of 310,000 records potentially affected. This complaint was upheld under Section 3, Clause 3.10 on compliance with relevant legislation and under Section 14, Clauses 14.4-14.5 on consent and passing email to third parties. Cornhill Direct have been asked to provide written assurance that they will in future comply with the Code. Complaint upheld.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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This complaint related to an unsolicited sales call which the complainant claimed to be deceptive and misleading. The Commission acknowledged the consumer’s claim that the operative qwerty who had made the call had been discourteous and BT were reminded of their obligations under the Code to be at all times courteous and efficient during sales calls. However, the Board concluded that the telephone script used for the putposes of these calls was satisfactory and the complaint was therefore not upheld. Complaint not upheld.

If you believe a DMA member is in breach of the Direct Marketing Code of Practice then contact the Direct Marketing Commission – you can alert us to an issue you see here.

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