John Lewis ruling sets off alarm bells

Thousands of companies face being dragged through the courts after John Lewis was ordered to pay damages for sending spam emails to a man, who successfully argued he had not opted in to receive marketing emails.
Roddy Mansfield issued proceedings under the EU Privacy & Electronic Communications Regulations 2003 when he started receiving emails after registering his details with John Lewis’ website, which opted him in for marketing using a pre-ticked consent box.
At a County Court hearing, a judge ruled the company had acted unlawfully as it could not prove Mansfield had agreed to receive the emails or was in fact one of their customers.
Although the law has been in place for more than a decade, it is understood to be the first time an individual has won damages following a ruling on the legislation.
Pre-ticked opt-in boxes were the standard for many years and were in wide use –  with some firms still using them today – meaning thousands of companies could be at risk from similar action.
The Information Commissioner’s Office has already warned firms that the proposed EU General Data Protection Regulation currently going through Brussels could force all marketing data to be opt-in only, ringing alarm bells throughout the DM industry.
Mansfield, a producer for Sky News, said: “John Lewis argued that because I had not opted-out of receiving their emails, I had automatically opted-in. But an opportunity to opt-out that is not taken is simply that. It does not convert to automatic consent under the law and companies risk enforcement action if they use pre-ticked boxes.
“John Lewis’ lawyers then argued that because I browsed their website I had ‘negotiated’ with them for a sale and a business relationship existed between us which would allow them to email me. The judge threw that out too.”
The head of Spamhaus, an anti-spam organisation, Richard Cox said: “As the Information Commissioner cannot take action on individual breaches of the law, the only way to stop this type of spam is for individuals to take action themselves.
“Only the individual in each case will know whether they consented to their details being harvested for this type of activity. Hopefully it will be a warning to other UK companies not to abuse their customers’ personal data.”
John Lewis said in a statement: “Mr Mansfield voluntarily gave us his email address, set up an account online and chose not to opt-out of marketing communications when that option was available to him.
“We listen carefully to what our customers tell us about how and when we communicate with them and endeavour to do so in a manner that is convenient to them. We’re sorry Mr Mansfield was inconvenienced by our emails.”

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