Spam Wars – Success?

Case Reference Number ELE0154373

Dear Mr Root

Unsolicited marketing email complaint

Thank you for your correspondence regarding unsolicited direct marketing emails from ‘Intelligent Mailer’.

The Information Commissioner advises on and enforces the Privacy and Electronic Communications Regulations 2003 (PECR). These regulations cover the way organisations market subscribers by electronic means (for example using telephone, fax, text and email). Marketing can include the promotion of goods, services, aims or ideals.

Regulation 22 of the PECR requires that companies and organisations do not send unsolicited direct marketing by electronic mail (including email) to individual subscribers (which would include non- limited liability partnerships in England) without their prior consent.

There is an exemption this rule which can apply in the case of a clearly defined customer relationship. However an organisation must satisfy all of the following criteria for this exemption to apply. They are:
1. Your contact details are collected “in the course of a sale or negotiations for a sale”.
2. Your details are only used to send marketing messages about similar products and services.
3. You are given the opportunity to opt-out when your details are initially collected and you are given the opportunity to opt-out in every subsequent marketing communication.

The prior consent requirement of this legislation does not apply to corporate subscribers (including limited companies and non limited liability partnerships). However in this case it appears from the information provided that although the email addresses you are receiving these communications on are business addresses, Roots Kitchens and Bedrooms are a non-limited liability partnership, so would come under the definition of ‘Individual subscriber’ and should not be receiving unsolicited direct marketing emails without having given prior consent.

Under the PECR the Commissioner has no powers to punish an organisation for a breach of the Regulations. His aim is rather to achieve compliance with them. In light of this we have written to Intelligent Mailer reminding them of their obligations under the PECR and explaining the action they must take to comply in future. We have also asked them to suppress all the email addresses at your domain from their marketing list. This should take no longer than 28 days. After this time you should not receive further emails from them.

We will, however, keep this case on file. In the event that you receive further emails from Intelligent Mailer (or their associated sites such as KT8.com) to your email addresses please let us know in writing, quoting the reference number above. Where appropriate we will pass your complaint to our Regulatory Action Division for them to consider formal action.

Where an organisation seems to be persistently breaching the PECR we can take further action to compel them to comply. More information about the factors we take into account when deciding if further action is appropriate can be found in our ‘Strategy for Regulatory Action’ which is available from our website www.ico.gov.uk (follow the links for ‘Tools and resources’, ‘Document library’, Data protection’ then scroll down to ‘Detailed specialist guides’) or from our helpline on 01625 545745. Details of the formal action we take or are considering can be found on our website at: http://www.ico.gov.uk/what_we_cover/privacy_and_electronic_communications.aspx

Thank you for bringing this to our attention.