Mobile marketing – lessons learnt from Optical Express

Mobile marketing is an essential part of the marketing tool kit of most retailers.

It allows retailers to send offers and promotions direct to consumers' handsets.  But are the consents from general opt ins (like the one below) valid?

"Tick here to confirm that you are happy to receive marketing texts from selected third parties"

The recent decision from the First Tier Tribunal (FTT) of the Information Commissioner's Office has cast doubt as to whether this type of opt in consent is sufficient to fulfil a retailer's requirements to obtain informed consent pursuant to Regulation 22(2) of the Privacy and Electronic Communications (EC Directive) Regulations (the PECRs).

The FTT's decision concerned the legality of a series of marketing texts for laser eye surgery sent by Optical Express. The texts were based on personal data provided by six data suppliers who had themselves obtained it from 120 sources, including contact details collected by Thomas Cook as part of a travel survey.

The FTT held that Optical Express could not rely on the consents obtained via the Thomas Cook survey as the consent was not freely given, specific nor informed.  It clarified that to be "informed" consent, the consumer needs to be told who would be provided with the data and what type of products or services that the consumer would be contacted about.  The ICO issued an enforcement notice requiring Optical Express to cease sending unsolicited texts.

This decision builds on the ICO's Direct Marketing Guide, which explains that it's "extremely unlikely that anyone would intend to consent to unlimited future marketing calls or texts from anyone, anywhere.  The question is what the customer would reasonably expect, given the context".

The result is that retailers who purchase marketing lists sold via third parties need to be aware that the consents in marketing lists are likely to be full of holes, as viewed from the tougher stand-point now being adopted by the ICO.

To ensure you don't fall on the wrong side of the Optical Express decision we recommend that when purchasing a marketing list retailers request to see the wording of the original consents that the consumer has accepted, and ensure that these consents are specific enough.  Naturally, evidence proving the relevant consents is also essential.