Can I phone your friend?

27 February 2006

Or, rather, can I e-mail him?  When is explicit consent required for commercial e-mails and whose responsibility is it to obtain it?  If you use the “recommended by a friend” technique in your e-mail marketing, you should be aware of the latest ASA adjudication that deals specifically with this rather tricky technique and could have repercussions for the way you do business.

Back in August, a member of the public complained to the ASA after he had received a commercial e-mail, which told him “a friend” recommended the website “Who-Remembers-Me.com”.  Did a friend genuinely give his name to the advertiser?  Or was this an unsolicited e-mail?  Everyone knows, of course (!) that for electronic marketing communications (for example e-mail or SMS), advertisers should obtain explicit consent before contacting members of the public.  That requirement is enshrined in clause 43.4 of the CAP Code (http://www.cap.org.uk/cap/codes/cap_code/ShowCode.htm?clause_id=1688). The clause does, however, exempt those “marketing business products to corporate subscribers … including to their named employees”.

The advertiser argued that, because the e-mail had been sent to a business address (the consumer’s work e-mail), consent was not required.  The advertiser also argued that the “friend” did exist – and therefore consent had in theory been given – but they could not reveal any more for legal reasons.  So they thought they had covered themselves from both directions.

The ASA disagreed (see link above to read the adjdudication), because the e-mail was not about a “business” product but was selling a personal service to a private individual.  Also, it was possible to enter private addresses into the “”recommended by a friend” form.  The exemption in 43.4 did not apply.

Consent, therefore, had to be sought.  But, in “recommended by a friend” marketing, where does consent come from? The ASA questioned why a friend recommending a website would want to remain anonymous and it considered that allowing anonymity opened up the system to abuse.  Interestingly, the advertiser’s inability to prove that a friend had genuinely made the recommendation revealed that the “friend” should in any case have obtained the recipient’s consent to hand over the latter’s e-mail address to “Who-Remembers-Me.com”.  Furthermore, it was the advertiser’s responsibility to ensure that that consent had been obtained.  The basis for that  can be found in the Information Commissioner’s Guidance to the Privacy and Electronic Communications (EC Directive) Regulations 2003 (viral marketing).

A logical conclusion to draw would seem to be that marketers should at the very least reveal the name of the “friend” who made the recommendation.  They might even want to include a phrase such as “in submitting this information, you confirm that you have the authority to do so” when asking users to give their “friend’s” name and e-address for marketing purposes.  And they should be aware that sending commercial e-mails to work addresses does not necessarily relieve them of their obligations under 43.4.