The Information Commissioner’s Office (ICO) has fined American Express Services Europe Limited (Amex) £90,000 for sending more than four million marketing emails to customers who did not want to receive them. To be exact, from 1 June 2018 to 31 May 2019, a confirmed total of 4,098,841 direct marketing messages were sent by, or at the instigation, of American Express Services Europe Limited. These messages contained direct marketing material for which subscribers had not provided adequate consent.
The ICO began investigating when it received complaints from Amex customers who were getting marketing emails despite having opted out from them. The emails included details on the rewards of shopping online with Amex; getting the most out of using the card and encouraging customers to download the Amex app. Amex had rejected its customers’ complaints saying the emails were servicing emails and not marketing.
Andy Curry, ICO Head of Investigations said: “Our investigation was initiated from just a handful of complaints from customers, tired of being interrupted with emails they did not want to receive. I would encourage all companies to revisit their procedures and familiarise themselves with the differences between a service email and a marketing email, and ensure their email communications with customers are compliant with the law.”
ICO guidance clearly defines the difference between marketing and services emails. Service messages contain routine information such as changes to terms and conditions and payment plans or notice of service interruptions. Direct marketing is defined as any communication of advertising or marketing material directed at particular individuals.
The ICO states: “You will often need a person’s consent before you can send them a marketing message. If you do need consent, then – to be valid – consent must be knowingly and freely given, clear and specific. It must cover both your particular organisation and the type of communication you want to use (eg call, automated call, fax, email, text). It must involve some form of very clear positive action – for example, ticking a box, clicking an icon, or sending an email – and the person must fully understand that they are giving you consent. You cannot show consent if you only provide information about marketing as part of a privacy policy that is hard to find, difficult to understand, or rarely read.
“Remember that the customer is entitled to withdraw their consent at any time. You must make it easy for people to withdraw consent, and tell them how.”
It is against the law to send marketing emails to people unless consent has been freely given. This is contained in Regulation 22 of the Privacy and Electronic Communications Regulations 2003.
During the investigation the ICO found that Amex had sent over 50 million, of what it classed as, servicing emails to its customers. The ICO revealed that for nearly 12 months, between 1 June 2018 and 21 May 2019, 4,098,841 of those emails were marketing emails, designed to encourage customers to make purchases on their cards which would benefit Amex financially. It was a deliberate action for financial gain by the organisation. Amex also did not review its marketing model following customer complaints.
Curry went on further to say, “This is a clear example of a company getting it wrong and now facing the reputational consequences of that error.
“The emails in question all clearly contained marketing material, as they sought to persuade and encourage customers to use their card to make purchases. Amex’s arguments, which included, that customers would be disadvantaged if they weren’t aware of campaigns, and that the emails were a requirement of its Credit Agreements with customers, were groundless.”
Members of the public who believe they have been the victim of marketing emails, nuisance calls and texts are encouraged to report them to the ICO, get in touch via live chat or call the helpline on 0303 123 1113.
