When advising clients, on the relevant direct marketing "opt-in" and "opt-out" obligations (under the Privacy and Electronic Communications (EC Directive) Regulations 2003), don’t forget the ASA’s "CAP Code", which is a self-regulatory code governing non-broadcast marketing communications. A recent ASA decision against ING shows that, while not having the legal force of the Regulations, breach of the Code can lead to high profile embarrassment for an organisation and can upset your customers. ASA decisions also give useful guidance on direct marketing practice.
ING sent out a letter and newsletter to customers who had specifically opted out of receiving marketing communications. The letter invited the customers to call the customer services helpline if they wished to change their mind and opt back into receiving these communications. A number of ING customers complained to the ASA about the letter.
The ASA upheld the complaint and found ING were in breach of the Code, which requires marketers to take all necessary steps to ensure that marketing communications are not sent to consumers who have asked not to receive them. Although ING had sent a special version of the newsletter to these customers (which did not include promotional offers), it still promoted ING’s products. The ASA found ING had simply ignored the customers’ opt-out.
However, unfortunately the ASA did not give further guidance on whether, had ING simply sent the letter without the accompanying newsletter, this would have been permitted under the Code.
ASA decisions have, in the past, given useful guidance on common direct marketing issues, such as the requirement for "explicit" opt-in consent under the Code (see http://www.cr-law.co.uk/articles/viewarticle.asp?articleid=1371 , which concerned a "tell a friend" service).