Explicit consent – ASA ruling

The ASA’s recent ruling on direct marketing practice in its adjudication of Direct Home Shopping Brands Ltd, trading as Kaleidoscope Ltd, is uncompromising.

The ad placed by Kaleidoscope in the national press, relating to an offer for a marquise ring, explained in the small print:

“By ordering from us, you are consenting t0 us sharing your information with other organisations and to us or them contacting you for marketing purposes by mail, telephone, email or otherwise. If you do not wish to be contacted by us by telephone for marketing purposes please tick this box. If you do not wish to be contacted by other organisations for marketing purposes, please tick this box.”

Under the CAP Code, the explicit consent of consumers is required before an advertiser may
send marketing communications by e-mail or to mobile devices, or disclose their personal details to third parties for marketing purposes. Further, the use or disclosure of personal information for any purpose substantially different from that which consumers could reasonably have foreseen and to which they might have objected also requires explicit consent under the CAP Code. The ASA concluded that Kaleidoscope’s approach breached the relevant provisions of the Code.

Although not made clear in the ASA’s ruling, the ASA appears to have taken the view that the provision of a notice did not amount to explicit consent, and/or that the placing of a notice in the small print of the order form could not constitute such consent, taking into account the size of the print and the fact that it also contained a number of other terms relating to the offer. That Kaleidoscope’s small print did not appear to provide consumers with the opportunity to opt out of receiving email marketing material (although it did mention telephone marketing) would not have helped their contention that the relevant terms had been drafted by their solicitors and that they believed it complied with the Data Protection Act 1998.

The ruling does not make clear whether Kaleidoscope had been trying to rely upon a “soft opt-in” in the CAP Code, similar to that under the Privacy and Electronic Communications Regulations.

While this is very much an adjudication under the self-regulatory CAP Code, and not under the relevant legislation, direct marketers are reminded that it is not too late to influence the Information Commissioner’s “Privacy Notices Code of Practice”, which covers identical issues. The code is open for consultation until 3 April.

Datonomy wonders whether this ASA ruling is a sign of the approach to direct marketing issues that will be taken by the new Information Commissioner, the outgoing ASA director-general.

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