Case law: Businesses beware sending service messages to customers electronically that contain marketing messages

Businesses should ensure service messages sent to customers electronically do not include marketing messages - unless the recipient consented to receiving marketing communications and they otherwise comply with privacy and electronic communication rules.

Privacy and electronic communications laws prohibit businesses from sending electronic marketing messages, such as an email or text, without consent of the recipient.

In a recent case, a company texted customers a service message about how to use a new App, but also included a marketing message promoting the imminent launch of an upgraded product on the basis that customers could use the App to count down to the launch date.

Of the millions of texts sent out, including a follow up message to those who had not acted on the first message, more than 2.5 million were sent to customers who had opted not to receive direct (including electronic) marketing messages.

The Information Commissioner’s Office (ICO) received a complaint and investigated the matter.

The ICO made clear the company had breached the rules – particularly, the fact the company had followed upon its original service message supported the ICO’s finding that there was also a marketing element to that original message. It fined the company £100k.

Operative date

• Now

Recommendation

• Businesses should ensure that electronic service messages sent to customers do not include marketing messages, unless the recipient has consented to receiving marketing communications, and that they otherwise comply with the privacy and electronic communication rules.