Between April and May 2022, Penny Appeal sent over 460,000 unsolicited text messages to 52,000 people over ten days. The messages were sent to coincide with Ramadan to encourage people to make donations.
The ICO and the Mobile UK’s Spam Reporting Service received 354 complaints from people who felt that the messages were “intrusive” and “unwanted”.
The ICO carried out a full investigation and found that Penny Appeal had created a new database where requests to opt out were not recorded and messages were being sent to anyone who had interacted with the charity in the last five years. Accordingly, Penny Appeal did not have valid consent for the direct marketing messages in contravention of Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PERC). As the sender of the communications, the ICO found that the charity should have ensured that they had valid consent before the messages were sent.
The ICO issued an Enforcement Notice requiring Penny Appeal to stop sending direct marketing communications without consent within 30 days.
The Law
The relevant piece of legislation to direct marketing communications is PERC.
Regulation 22(2) of PERC states:
“except in the circumstances referred to in paragraph (3), 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” [emphasis added].
Regulation 22(3) of PERC states:
“A person may send or instigate the sending of electronic mail for the purposes of direct marketing where—
(a) that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient;
(b) the direct marketing is in respect of that person’s similar products and services only; and
(c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.”
Comment
Following the issue of the above enforcement notice, the ICO have published a blog on their website to remind all charities that it is against the law to send marketing texts, calls or emails without valid consent.
The ICO has helpfully summarised what charities should/should not be doing when it comes to direct marketing communications, namely:
- Only email or text someone if they have specifically consented;
- People cannot provide consent as a condition of subscribing to a service. Consent needs to be freely given;
- An opt-out option should be given and acted on promptly when exercised; and
- A clear “do not contact” list should be kept for anyone who has opted out or unsubscribed.
How can we help
Ruby Ashby is a Senior Associate in our expert Dispute Resolution team, specialising in data breach claims, inheritance and Trust disputes and defamation claims.
If you need any advice, please do not hesitate to contact Ruby or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.