Last weekend, Sky News reported the success of one of their producers, Roddy Mansfield, in winning a case in a county court against John Lewis. Mansfield registered on the John Lewis website, and started to receive marketing emails from them. John Lewis’ defence was that Mansfield had not unticked a box on the website, and this mean he had chosen not to opt out. Two arguments available to John Lewis appear to have failed – that a pre-ticked box is a legitimate way of getting consent, and that registering on a website constitutes ‘negotiations for a sale’, something which would allow John Lewis to use the so-called ‘soft opt-in’, which is an explicit opt-out. We can’t know for certain exactly how it played out unless / until a written judgement becomes available, and given that it’s a county court, a well-informed friend tells me that there may well not be one.
Nevertheless, on the face of it, this is a success. Nobody really thinks that a pre-ticked box is a meaningful way of getting consent from individuals. Any organisation that uses the pre-ticked box is cynically relying on inertia and inattention to detail. If they actually wanted consent, such organisations would have an unticked opt-in box. The pre-ticked market wants as many emails as they can get, and they hope that the supposed ‘ambiguity’ of the Privacy and Electronic Communications Regulations (PECR) and the Data Protection Act will allow them to get away with it. I’m glad Mansfield has apparently proved them wrong, and I hope his example is taken up by others.
I’m even more happy now that I have read the petulant comments of Dela Quist, CEO of Alchemy Worx “a digital marketing agency with a 100% focus on email”, who wrote a blog for the Direct Marketing Association about the case. Quist makes a bad start by describing Mansfield as “Data Directive litigation troll” in the first line. Mansfield won his case under PECR, but the only law that Quist mentions throughout his whinge is an unspecified ‘Directive’. Whether he means the 1995 Data Protection Directive (the source of our definition of consent) or the 2002 Directive on Privacy and Electronic Communications (which is where we get PECR from), he doesn’t appear to know what either says. Moreover, it’s a sign how some marketing professionals see their targets that he labels Mansfield a ‘troll’. Trolls are online bullies who harass and insult the innocent. Even if Mansfield sued John Lewis solely to get a story, he wouldn’t get that story if John Lewis had complied with the law.
Quist claims that John Lewis were entirely within their rights to use a pre-ticked box as it is “one of the most widely accepted interpretations of the Directive“. This is wrong on two counts. Firstly, the fact that lots of people do something is meaningless if they’re all wrong (and they are). Secondly, the Data Protection Directive (if that’s the one he means) says that consent has to be “freely given”. This has been the law since 1995. I do not see how anyone could interpret the absence of action as consent being given. The person who forgets to untick, does not see or misunderstands the pre-ticked box hasn’t given consent. “Given” is clearly active. But we don’t even need the Directive; all we need to do is look at the relevant law i.e. PECR. Presumably, given his 100% focus on email, Quist is very familiar with the relevant UK law on direct email marketing, even though his comments imply otherwise. Regulation 22 states:
“a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender”
Nobody can assert that ‘notified the sender’ could be interpreted as ‘does not untick a box’. Nobody can claim that an email is ‘solicited’ because a person didn’t untick a box. Quist’s interpretation, if you can call it that, is self-serving nonsense. He’s absolutely right that the county court does not set precedents. He is also right that Sky Television (not quite the organisation that Mansfield works for, but close enough) has some dodgy marketing practices of its own. Two wrongs don’t make a right and Quist is throwing up a smokescreen. He calls Mansfield names for having the temerity to prove that the law is more on the side of the marketing subject / victim than the marketer. He complains that it is cheaper for the marketer to pay up than challenge decisions. This is not the case, as most of the previous spam winners (like Gordon Dick and Richard Herman) have won precisely because the spammer didn’t show up. Mansfield’s case appears to have been contested by John Lewis, and that’s what has Quist so rattled he has to lash out with name-calling. What he probably realises that if any organisation tried to push this mangled interpretation of straightforward law further up the legal food chain, they would be devoured. I doubt Mansfield got very much in the way of compensation, but that’s not the point for me. The point is that all marketers should stop trying to get around the law. They should respect people’s rights and create interesting and innovative marketing that people want to receive, rather than hoovering up email addresses by default.
It’s very simple: if you want to send email marketing, the law requires a simple opt-in. No pre-ticked boxes, no opt-outs. On the (admittedly scant) evidence of this case, if you want to use the soft opt-in, the customer has to be doing more than registering on your website. Many responsible marketers do this routinely – as an enthusiastic competition entrant, I see it ever day. John Lewis’ decision to do otherwise shows that despite their cuddly, collective image, they’re as capable of cynicism as anyone. I happily shop at John Lewis and like them as a brand, but I’m disappointed in their tactics. In a week when an obnoxious phone spammer gets a seat on the Question Time panel from his corporate sponsors, Mansfield’s case and the reaction to it is a welcome bit of light relief.
I have been tweeted by the Direct Marketing Association, who have helpfully confirmed two things. On a general point, blogs on the DMA site reflect the views of the author, rather than the DMA itself. This is fair enough. However, perhaps more importantly, the DMA also drew my attention to this section of their website, and in particular point 3, which makes clear that the pre-ticked option is not considered by the DMA to be an acceptable method for gathering consent. Whatever you think of my opinion, this clearly puts Quist’s blog into an interesting perspective. Thanks to the DMA for getting in touch.