Top brands caught with trousers down on email consent

The legality of the email marketing campaigns run by many of the UK’s top brands – including Argos, M&S, Amazon, eBay, Groupon, and Lastminute.com – has been called into question following a ruling against an unsolicited email sent by online shopping giant Lands’ End.
The issue has been sparked by a complaint to the Advertising Standards Authority, after one consumer received a personalised email from Lands’ End, even though he had never signed up for marketing communications.
The ASA investigation found that the email marketing agency working for Lands’ End had sourced the consumer’s details from deal comparison site ClicPlan, which offers email data from a raft of partners including Argos, M&S, Amazon, eBay, Groupon, Lastminute.com, Trivago, Virgin Wines, VisitScotland, Burton and Kelkoo.
Lands’ End provided a screenshot from its records showing when the complainant had submitted his details to the partner website. It believed the statement next to the opt-in box on the partner website made clear that the complainant was giving his consent to receive email marketing from third parties.
However, the ASA ruled that the wording of the consent form was far too vague. It read: “You understand and agree that you are establishing a business relationship with our network of affiliate partners, and you may be contacted by one of our partners by telephone or mobile using automated dialling or electronic mail.”
Censuring Lands’ End, the ASA said: “[The sign-up] did not make clear the nature of the third parties or the types of communications that consumers might receive from them. There was no clear connection between the types of products or services provided by the website the complainant signed up to, which offered deals on a wide range of products, and those provided by Lands’ End.”
In its defence, ClicPlan claimed it had implemented a series of controls to ensure that the processing of personal data by its company and its partners was always carried out in full compliance with the law.
However, the Information Commissioner’s Office might have something to say about that.
The September 2015 First-Tier Information Rights Tribunal ruling against Optical Express outlawed the use of third-party information unless it can be proved prospects have opted in to receive marketing from “other” brands. This forced Callcredit Information Group to overhaul one of its biggest customer databases by rebuilding the Define file, following fears the data could fall foul of laws on consent.
The ICO now wants to go one step further by beefing up existing laws so that personal information can only be shared with named companies.
One industry source said: “It is shocking that the likes of M&S, Argos, Amazon and Lands’ End appear to be allowing their customer data to be used illegally. While Groupon is no surprise – it consistently tops the spam lists anyway – you have to ask what measures do they others have in place to prevent such abuse? They are already breaking the Privacy in Electronic Communications Regulation (PECR), when GDPR comes in, they’ve had it.”