The adjudication by the Advertising Standards Authority (ASA) is
possibly the first ruling of its kind in the country.
Who-Remembers-Me.com was started in 2003 "to provide a complete
worldwide service for finding and connecting with old friends,"
according to the website. Founder Rob Billington was interested in
rediscovering people from his past, "but felt frustrated by the
limitations of other websites that focused primarily on school
friends."
"Inevitably it takes time for word to spread, but
[Who-Remembers-Me.com] is well on its way to its first million
members," the site continues. "And, if we all make the most of the
new 'Tell a friend' link, it won’t take long to get there…"
But the site's 'tell a friend' service is open to abuse.
The ASA received a complaint from someone who received an email
that stated: "Your email address has been entered into the
www.Who-Remembers-Me.com 'Tell a friend' link by one of your
friends in order for us to send you a short note recommending this
web-site as they feel it may be of interest to you."
The complainant challenged whether his email address had
genuinely been submitted to the advertisers' website by one of his
friends as claimed, and objected that the emails were unsolicited –
i.e. spam.
Founder Robert Billington said he could not reveal any details
about who submitted the complainant's email address because of
practical and legal restrictions.
But the ASA was concerned that he had not demonstrated that the
complainant's email address genuinely was provided by a friend.
A test at the website today shows that no name is needed to send
an email to anyone: the sender's name can be completed or left
blank. If "Bob Smith is entered as the sender's name, an email is
sent saying "Bob Smith has recommended we contact you…" If the
field is left blank, rather than return an error message, the
service proves substitute words: "a friend has recommended we
contact you…"
The ASA wrote: "We told the advertiser that if he operated a
facility which, by allowing anonymity, did nothing to discourage
third parties from requesting the sending of direct marketing to
other people, he ran the risk either of misuse, or that recipients
would think that no such friend existed and the emails were merely
spam sent by the website owner."
It added that he should consult the CAP Copy Advice team before
sending similar emails in future.
The email was deemed to breach the CAP Code, the rule book
followed by the ASA, which states that: "Before distributing or
submitting a marketing communication for publication, marketers
must hold documentary evidence to prove all claims, whether direct
or implied, that are capable of objective substantiation."
On the spam argument, Billington pointed out that his email had
been sent via the 'tell a friend' link to a business domain name.
Generally there is no legal requirement for prior consent (or for
'explicit consent' under the CAP Code) for marketing emails sent to
business addresses. But the ASA upheld the complaint
nevertheless.
It pointed out that the email did not relate to business
products, but invited people to register on, and subscribe to, a
site full of personal details.
"We questioned why a 'friend' would wish to remain anonymous if
he or she was confident that the recipient would wish to receive
such mailings," wrote the ASA. "We also noted that similar emails
could be sent from the website to private email addresses".
This could be influential in future ASA spam complaints. The ASA
seems to be saying: if spamming a business address, you better be
selling business services.
The ASA told Billington to ensure his database practice complied
with the Code on all occasions.
The case highlights a risk of viral marketing.
When one person forwards a company's marketing email to a
friend, the company is unlikely to receive a complaint, even if the
email annoys the friend. But when websites run 'tell a friend'
services, as many do, a company is sending an email to a stranger.
That can amount to spam, in breach of the CAP Code and also in
breach of the Privacy and Electronic Communications
Regulations.
Struan Robertson, a Senior Associate with Pinsent Masons and
editor of OUT-LAW.COM, said: "There is a risk; but the Information
Commissioner has recognised viral marketing as a legitimate
practice and has issued guidance on the use of 'tell a friend'
services."
Robertson said the guidance does not mention the need to forbid
anonymous emails. "Perhaps that is taken for granted," he
said, "or perhaps the Commissioner is acknowledging that it is very
difficult to block fictional sender's details."
But Robertson says the ASA's ruling does not amount to a
recommendation to ban 'tell a friend' services. "It is almost
impossible to run a service like this without some risk of
upsetting email recipients. That doesn't mean websites should
abandon these services. All they need to do is follow some steps to
minimise the risk."
Many of these are in the Commissioner's guidance: do not offer
an incentive to visitors to send email; include a consent
statement; and tell your visitor that you will let his friend know
how you got his details. It does not appear that these were
followed by Who-Remembers-Me.com.
OUT-LAW has published a free guide today that explains these
issues in more detail and adds some additional team from the
privacy law team at Pinsent Masons.
Robertson concludes: "The commercial risk with a 'tell a friend'
service is fairly low. In the event of a complaint or new guidance
from the Commissioner or a court, a website can change or even
abandon its 'tell a friend' services without collateral damage. In
contrast, a high risk exists with data collection practices: get
these wrong and you build a database that it may be unlawful to use
– making it potentially worthless."
