When A Consumer Says ‘Yes’ To Marketing, They May Mean ‘No’

If you send marketing communications to consumers based on marketing opt-ins from consumers, especially if relying on data lists you’ve purchased from others, then this briefing note is for you; when a consumer says ‘YES’ to receiving marketing communications by ticking an opt-in box, it can still mean ‘NO’ unless correctly worded and followed.

This week Optical Express found this out to its cost, following the upholding of the Information Commissioner’s enforcement notice by the First Tier Tribunal.

Optical Express is now prohibited from using the supplier data lists it purchased (no doubt at some cost and presumably in good faith). Optical Express may have recourse against the supplier under the data list contract, but that’s typically unusual and, even if it does, any remedy available is most unlikely to compensate for the expected bad publicity and loss of consumer trust.

Why did this happen?

The answer, in brief, is that Optical Express was unable to demonstrate that all persons on the list had given any consent or any adequate consent.

For the opt-in consent wording to have been properly worded, in each case it should have:

• identified the original business obtaining the consent (or at least made this clear elsewhere in the communication);
• described each type of communication planned (e.g. mailshot, email, social media message);
• referred to the particular types of product or service to be marketed;
• explained the intention to allow others to ‘use’ the consent;
• identified the categories of those others (e.g. the types of product/service they offer); and
• notified the fact that the consents were being sold on, and not just gifted.

What should you do now?

1. Check your opt-in wording using the checklist above.
2. If buying data lists, check with your suppliers how they source the data and that they can confirm they’ve followed the checklist above.
3. Check that the data list supply contract protects you.
4. If in doubt, seek expert legal advice.