An unnamed member of the public complained about the e-mails
from Company Car Consultants, a company based in Milngavie, near
Glasgow, that sources company cars for customers.
Near the bottom of the marketing e-mail was a heading:
"Marketing Compliance Code":
"marketing communications are delivered in accordance with EU
Directive on Privacy and Electronic Communications. All marketing
communications originate from outside the EU. An active method of
opting out of further communications from us and associated
organisations is supplied at the base of this email
communication".
A link below stated "To no longer receive further
communications please click here".
The Surrey-based complainant took action after he received
more than 80 e-mails to his personal account, despite using the
opt-out link provided.
Given that Company Car Consultants is based in the UK, it is
irrelevant to compliance with spam laws that the e-mails may have
been sent from a server based overseas. Prior consent would be
necessary for legal compliance, and for compliance with the
rulebook followed by the ASA, known as the CAP Code.
However, the company was not seeking an argument about the
location of its service. Instead, it said it could not determine
where it had obtained the complainant's details without knowing his
e-mail address – which the ASA did not disclose – and suggested
that he may have been a previous customer or may have signed up at
its web site. The complainant denied this, and the ASA seemed
inclined to believe him.
The ASA wrote:
"The Authority considered that the advertisers had not shown
they had adhered to the relevant legal or self-regulatory
requirements and told them to ensure that, in future, promotional
e-mails were sent only to consumers who had consented to receive
them."
As for the unsubscribe problem, Company Car Consultants
suggested that its failure may have been due to a technical error;
but the ASA considered this unlikely since the complainant had
tried it more than once.
The ASA noted that the option of unsubscribing by dialling a
premium-rate phone number would cost £1.50 a minute – when the
advertisers should have provided a working opt-out facility free of
charge.
The ASA found breaches of the CAP Code on all counts. Failure
to comply with the CAP Code is not illegal; but the ASA can impose
penalties for non-compliance. Unfortunately for those hoping to see
stiffer punishments levied on spammers, the ASA's only action
against Company Car Consultants was a warning to ensure compliance
with the CAP Code in future.
