The ICO has fined telecoms company EE Limited £100,000 for sending over 2.5 million direct marketing messages to its customers, without consent.
The messages, sent in early 2018, encouraged customers to access and use the ‘My EE’ app to manage their account and also to upgrade their phone; a second batch of messages was sent to customers who had not engaged with the first.
During the ICO investigation EE stated the texts were sent as service messages and were therefore not covered by electronic marketing rules. However the ICO found the messages contained direct marketing and that the company sent them deliberately, although acknowledges that EE Limited did not deliberately set out to breach electronic marketing laws.
Andy White, ICO Director of Investigations said:
”These were marketing messages which promoted the company’s products and services. The direct marketing guidance is clear: if a message that contains customer service information also includes promotional material to buy extra products for services, it is no longer a service message and electronic marketing rules apply.
“EE Limited were aware of the law and should have known that they needed customers’ consent to send them in line with the direct marketing rules.”
“Companies should be aware that texts and emails providing service information which also include a marketing or promotional element must comply with the relevant legislation or could face a fine up to £500,000.”
The ICO’s guidance on electronic marketing is clear that marketing messages can be only sent to existing customers if they have given their consent and if they are given a simple way to opt out of marketing when their details are first collected and in every message sent.
People have a right to opt out of receiving marketing at any time, at which point it’s the organisation’s responsibility to stop sending them.
Notes to Editors
- The Information Commissioner’s Office (ICO) upholds information rights in the public interest, promoting openness by public bodies and data privacy for individuals.
- The ICO has specific responsibilities set out in the Data Protection Act 2018, the General Data Protection Regulation (GDPR), the Freedom of Information Act 2000, Environmental Information Regulations 2004 and Privacy and Electronic Communications Regulations 2003.
- The Privacy and Electronic Communications Regulations (PECR) give people specific privacy rights in relation to electronic communications. There are specific rules on:
- marketing calls, emails, texts and faxes;
- cookies (and similar technologies);
- keeping communications services secure; and
- customer privacy as regards traffic and location data, itemised billing, line identification, and directory listings.
We aim to help organisations comply with PECR and promote good practice by offering advice and guidance. We will take enforcement action against organisations that persistently ignore their obligations.
- The ICO has the power under PECR to impose a monetary penalty on a data controller of up to £500,000.
- Civil Monetary Penalties (CMPs) are subject to a right of appeal to the (First-tier Tribunal) General Regulatory Chamber against the imposition of the monetary penalty and/or the amount of the penalty specified in the monetary penalty notice.
- Any monetary penalty is paid into the Treasury’s Consolidated Fund and is not kept by the Information Commissioner’s Office (ICO).