Headline: Advertisers in the UK Must Get Explicit Permission Before Marketing By E-mail

The UK’s ASA is an independent self-regulatory body responsible for supervising the CAP Code as applied to the advertising industry. The CAP Code is written by the advertising industry via its Committee of Advertising Practices (CAP). The ASA applies sanctions against parties who fail to follow its rulings.
Recipients of unsolicited commercial e-mails filed a complaint against the Training Guild (a Southampton seminar provider) alleging that their marketing violated Section 22.1 and Section 43.4 of the CAP Code. The CAP Code requires that (1) e-mails make clear that they are marketing communications, and (2) advertisers get explicit consent before sending e-mails to consumers.

The ASA rejected petitioners’ first contention, ruling that the Training Guild made it clear in the subject line that the e-mails at issue were marketing communications. However, the ASA upheld petitioners’ second contention, ruling that under CAP Code Section 43.4, the Training Guild failed to get explicit consent from the recipients: “it was the advertiser’ responsibility to ensure that the recipients on the list had given their explicit consent to receive such e-mails.”

In its ruling, the ASA helped to clarify the meaning of CAP Code Section 22.1, which states that marketers “should ensure that marketing communications are designed and presented in such a way that it is clear they are marketing communications.” The subject heading “Business Seminars – Telesales & Selling Skills made Easy” made it sufficiently clear that the e-mails were marketing communications. This ruling may help interpret a similar UK legal requirement found in the E-commerce Regulations of 2002.

The ASA’s second ruling – i.e., its insistence that e-marketers get explicit consumer consent before sending marketing e-mails – is perhaps even more important for the future of e-mail marketing in the UK. CAP Code Section 43.4 states that “The explicit consent of consumers is required before. . . marketing by e-mail or SMS text transmission, save that marketers may market their similar products to their existing customers without explicit consent so long as an opportunity to object. . . is given on each occasion.” The Training Guild bought a list of e-mail addresses belonging to people whom it believed had opted to receive e-mail marketing messages. The ASA ruled that even if the Training Guild bought the list in good faith, it was responsible for ensuring that the recipients had in fact given their explicit consent.

Section 43.4 reflects a legal requirement found in the EU Directive on Privacy and Electronic Communication due to be implemented in the UK. California anti-SPAM legislation, which has passed the California legislature and awaits the Governor’s signature, contains a similar provision. However, the effects of these legal requirements may be reduced since e-mails are not constrained by borders.

The Training Guild, UK ASA Adjudication (Sept. 10, 2003).