EE fined £100k for sending unsolicited marketing texts

What happens when a customer service message also includes promotional material? Do the electronic marketing rules under the Privacy and Electronic Communications Regulations (PECR) kick in?

The key takeaway

Beware texts and emails which provide service information and also include a marketing or promotional element. If you haven’t got the requisite marketing consents, you will be exposing yourself to a hefty fine.

The background

EE sent batches of messages to customers between 17 February and 25 March 2018. The messages informed customers to manage their account by using the “My EE” app. It also notified those customers about the release of the iPhone X and encouraged them to “countdown the days” to their upgrade via the app. 

This message was sent to 8.2m customers, with a second message sent to customers who had not engaged with the initial message. Over 2.5m messages had been successfully delivered to customers who had previously opted out of direct marketing.

The decision 

The ICO explained that including a marketing message within a service message contravened the rules. Since EE sent a follow-up message to non-engaging customers of the initial message this suggested to the ICO that it was a marketing exercise and not a service based one, as EE had attempted to argue. 

The ICO’s Director of Investigations and Intelligence, Andy White 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”.

Why is this important?

It took just one complaint from an individual who had opted out of EE marketing communications to launch the ICO investigation into EE. So take great care that a service message is just that, and contains nothing at all of a promotional nature.

Any practical tips?

You need to be very clear whether your proposed message is a service message or a marketing message. Text messages and emails providing service information, which also include a marketing or promotional element, must comply with the relevant legislation. 

Ensure that appropriate checks and balances are in place to prevent marketing and promotional material from slipping into otherwise acceptable service messages. Get this wrong and send it to customers who have not given marketing consents and you’ll face a lumpy fine under PECR. Remember that the e-Privacy Regulation is on its way in a few years (which replaces and updates PECR), which contains GDPR-level fines (potentially running into millions). Best get those checks and balances in place sooner rather than later…