The successful Claimant, Mr Roddy Mansfield, a producer for Sky News, brought the case against John Lewis under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (‘the EC Regulation’). The EC Regulation makes it an offence to send unsolicited emails unless a customer is aware that they have opted-in to receive such emails. Mr Mansfield began receiving the promotional emails after registering his details on John Lewis’ website which opted him in for marketing using a pre-ticked consent box. Mr Mansfield said: “John Lewis argued that because I had not opted-out of receiving their emails, I had automatically opted-in.”
The case highlights the need for all businesses to ensure that their marketing policies are in line with the law. Marketing campaigns must follow rules laid down by the Data Protection Act 1998 and the EC Regulation. Businesses are banned from sending marketing emails unless it can be proven that the recipient consented to them or was a customer. In this case John Lewis was unable to satisfy either requirement, therefore its use of customer information was deemed unlawful.
The EC Regulation provides that for email, fax or SMS marketing campaigns, consent from the recipient must be in the form of an ‘opt-in’ consent. This means that the proposed recipient must positively provide consent to being contacted in that way. It is possible however for businesses to send marketing campaigns via email, fax or SMS based on an ‘opt-out’ consent, this is known as the ‘soft-opt in’ exception, and applies when the following has occurred:-
- contact details have been obtained from the recipient during the sale or negotiation for the sale of goods or services;
- the marketing material related to the same or similar goods or services; and
- the recipient must be given the opportunity to opt-out at the time their information was collected and on each subsequent occasion where they are contacted.
Following the court ruling, John Lewis stated: “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.”
Business owners should take note of the law, particularly in view of this decision and the increased use of online marketing initiatives. Generally, personal data must be processed fairly, lawfully and for specified purposes.