A few days ago, the organisers of the Parklife Festival in Heaton Park in Manchester sent out badly spelt text messages to those who had booked to attend. The Manchester Evening News reports that the texts purported to be from the recipient’s mum, but in fact were a plug for the festival’s after parties.
A running theme of this blog is the way in which organisations sometimes overlook or ignore the rules in order to win business, and the casual intrusion and impoliteness that this represents. Assuming that the story is accurate, I think the Parklife organisers may have breached both the law and the advertising standards code (the CAP Code).
Of course, for starters, the festival organisers need consent from recipients to send them text marketing. This has to be active, clear consent, and not some bollocks buried in the T&Cs. Even if they can satisfy the so-called ‘soft opt-in’ (where messages for similar products and services can be sent subject to an opt-out), this would need to have been done explicitly. The fact that a person has booked tickets or expressed an interest would not be enough to infer consent. Parklife’s organisers may well have done this, but given the other problems, it’s a reasonable question to ask.
Regulation 23 of the Privacy and Electronic Communications Regulations states that a marketer cannot ‘disguise or conceal‘ their identity. By sending what is in fact a marketing text in the guise of a message from Mum, Parklife’s organisers have apparently breached this section. As the MEN points out and the BBC have confirmed, some of the recipients will have lost their mums, and so a text message from ‘Mum’ isn’t just crass marketing, it’s distressing. Whether or not the ICO will take action is a matter for them and presumably, may be based in part on whether they get any complaints. However, if they do take action, the NME reports that Parklife’s organisers have already apologised for ‘unnecessary personal distress‘, which would presumably be a factor in any proposed PECR civil monetary penalty. A CMP can only be issued if the communication would or would be likely to cause substantial damage or distress, which seems like a high threshold. However, getting a text message from what seems to be your dead mother is probably the kind of thing that CMPs were designed to address, especially if the text arrives the day before the deceased’s birthday.
As well as PECR, many marketing communications are covered by the CAP Code, which is enforced (to the extent of forcing advertisers to withdraw offending items) by the Advertising Standards Authority. The CAP Code has a number of interesting sections:
“3.1 Marketing communications must not materially mislead or be likely to do so.”
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“3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.”
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“3.5 Marketing communications must not materially mislead by omitting the identity of the marketer.”
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“4.2 Marketing communications must not cause fear or distress without justifiable reason”
And finally, just for good measure,
“4.3 References to anyone who is dead must be handled with particular care to avoid causing offence or distress.”
I’m not as familiar with the CAP Code as I am with DP and PECR, but this sounds like a fairly open and shut case.
The MEN reports that Sacha Lord, who runs the company behind the festival tweeted ‘So this is what it feels like to be a jar of Marmite! #LoveItOrHateIt’. I’m certain it’s more what it feels like to be a bellend, but it may be more than that. Any of the folk who received this moronic marketing may wish to consult with the ICO‘s website, or that of the ASA. It’s also a good example of where marketing law isn’t complex or confusing, as some marketers and their apologists like to claim. You don’t send text messages that look like they’re from people’s mum, especially because she might be dead.