In May 2021 the UK data protection and privacy regulator, the ICO (Information Commissioner's Office) fined Amex (American Express) for sending “service message” emails which contained marketing. This article gives an explanation to the ruling and a practical interpretation of the ICO guidance to help organisations improve their marketing and communication campaigns
What happened - a quick summary
Amex send service messages to customers regardless of their marketing preference. Between June 2018 and May 2019 Amex sent over 50 million emails to their customers (cardmembers) which Amex classed as non-marketing service emails. Of these 50 million emails, 4 million emails were sent to customers who had opted out of marketing communications.
During this period Amex received 22 complaints, and the ICO received 3 complaints. The ICO investigated and determined that some of the emails that Amex classified internally as service messages contained marketing material.
May 2021, the ICO fined Amex £90,000 for breaching PECR direct marketing rules (PECR is the UK implementation of the European-wide ePrivacy Directive).
Interpreting the ruling
To marketing professionals and those who provide guidance to marketers, this is a very useful ruling because it provides specific regulatory guidance and wording on a difficult grey area.
The ICO ruling gives very specific reasons where they deemed Amex to have made a mistake:
The email content is not a service message if the content is designed to encourage customers to make purchases
Amex failed to review its marketing and communication model despite the complaints they received
The following examples provided by the ICO show specific wording they deemed to be promotional or marketing in nature; which should not have been sent to customers who had opted out of marketing:
Wording or email objective identified by the ICO as marketing or promotional
A offer of £5 credit towards a £10 or more purchase
“Get up-to-date information on your current rewards points balance,
explore the latest products and savings available, and earn even more
rewards by referring friends and family”
“Your offers are loaded, ready to be redeemed”
"Visit the Offers tab to discover savings near you"
“you'll never miss a saving while you're out and about again”
The above wording examples are what the ICO highlighted to demonstrate that the content was marketing. Although wording like this may be seen by marketers and copywriters as nothing more than making the communications easier to read and understand, these examples give very clear guidance on the type of language and content that must not be included in pure service messages sent to those who have opted out of marketing.
Lessons Learned – practical guidance for marketers
Don’t leave things to chance and get expert advice. The ICO website and helpline are available for marketers who may require clarity in their practices. And if you are lucky enough to have legal resource available; involve that team in your content review decision-making process.
Review email content and campaign objectives closely. Anything relating to an encouragement to purchase will almost certainly be classed as marketing. If one of the KPIs for the campaign is related to sales, revenue or conversion; then the campaign is almost certainly marketing. Note that in addition to this, the ICO expand the definition of marketing to include the promotion of the organisation’s “aims and ideals” as well as the sale of products and services. Full details can be found in the ICO’s Direct Marketing Guidance.
If in doubt, if a service message needs to be sent to customers, and some of those are opted-out of marketing, I would recommend creating two versions of that content. The version being sent to customers opted-in to marketing can benefit from your preferred content. The version being sent to those customers opted-put of marketing can be made more factual and plain, containing no wording that could be interpreted as marketing
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