The company sent two newsletters to customers, one containing
promotional offers, the other only containing product information.
The second newsletter was sent to people who had said they did not
want to receive marketing information from the firm.
The company said that that version "did not contain any
promotional offers but was otherwise exactly the same as the first
version," it told the ASA.
The watchdog said that the sending of these newsletters was
against the wishes of the people who had opted out.
"The ASA considered that, although it did not contain any
promotional offers, the second version of the newsletter was
nevertheless likely to be viewed by recipients as a marketing
communication, because it promoted ING Direct's 'Flexible
Mortgage', 'Home Insurance', 'Guaranteed Investment Account' and
'Cash ISA'," said the ASA ruling.
"We considered that, by ticking the opt out box on the
application form, customers would expect to receive no
communications at all from ING Direct about their other products
and services; those customers were likely to interpret the receipt
of an ING Direct promotional newsletter, accompanied by a letter
that stated 'We currently have you recorded as having opted out
from receiving marketing promotions from ING Direct', as ING Direct
being aware of, yet ignoring, their wishes," it said.
The company was ordered by the ASA not to send "any marketing
communications at all" to customers who had opted out of receiving
them.
Companies which want to contact people who have opted out have
more than just advertising regulations to contend with, though,
said Louise Townsend, a privacy law specialist with Pinsent Masons,
the law firm behind OUT-LAW.COM.
"The Data Protection Act (DPA) says that you have an absolute
right to object to direct marketing from an organisation at any
time," she said. "If you have objected, it is a breach of a right
under DPA if a company markets to you."
"There is guidance from the Information Commissioner on what is
marketing. Is it marketing to send out a newsletter? The
Commissioner's guidance is quite wide, and says anything that
promotes your ideals or aims as an organisation is marketing."
Townsend said that it might be possible in some circumstances to
contact people in the form of a service communication.
"You do get companies that try and get away with it, if they are
sending monthly bills to individuals, they might try and put
something there that they would argue is minimal or incidental to
the main purpose of the message," said Townsend. "But the
Commissioner's view would be that even that is trying to be
marketing, so you have got to be very careful."
