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Case law: Businesses using marketing lists must ensure those on them have given effective consent

Businesses using marketing lists should ensure proper, valid consent has been given to use the list for marketing by the individuals on it, under UK laws on data protection and unsolicited marketing communications.

Legal Alert

This update was published in Legal Alert - January 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A business obtained a list of prospects’ mobile phone numbers from a third party and sent marketing texts to those on the list. The Information Commissioner – the independent body set up to protect personal information – issued an Enforcement Notice requiring it to stop sending texts to those on the list without their specific consent.

The third party had compiled the list by carrying out a survey and asking those who responded to tick a box if they consented to receiving marketing communications from third parties. The list comprised those who had ticked to consent. The business therefore argued that those on the list had consented to receiving texts from them.

The First-Tier Tribunal rejected this argument and said that:

  • Under UK data protection law, individuals asked to consent to marketing communications from third parties have to be told which other products or services will be marketed to them as a result of giving their consent
  • Separately, under UK laws designed to prevent unsolicited marketing communications, consent is only effective if it is given to the sender of such communications. As the tick box consent in this case had not been given to the business – indeed, the name of the business had not even been mentioned at the time the consent was supposedly given – the consent was neither fully informed nor valid

Operative date

  • Now


  • Businesses using third party lists for marketing purposes should ensure that proper, valid consent has been given to their use of the list, in accordance with UK law on both data protection and unsolicited marketing communications

Case ref: Optical Express v Information Commissioner (EA/2014/0014)

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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