In May 2021, Amex was fined £90,000 for sending nuisance marketing emails to customers.
It should seem obvious but mixing marketing messages with customer service emails just doesn’t work when your clients are individual consumers. Customer service emails can be sent to all customers; marketing ones to individuals need consent. Simple enough, but Amex failed to make that distinction.
Some customers complained after receiving marketing emails from Amex despite having opted out of them. The emails encouraged customers to download their reward scheme app and shop online using their Amex card. When customers complained, Amex ignored the complaints and continued to send the emails.
Amex argued that the emails were not marketing emails as they addressed service. The ICO disagreed as the emails were designed to encourage customers to use their cards which would benefit Amex financially. They saw the emails as a deliberate action by Amex to increase their profits.
The ICO found that out of 50 million emails sent out, which were described by Amex as servicing emails, over 4 million were actually marketing emails.
Andy Curry, ICO Head of Investigations said:
“This is a clear example of a company getting it wrong and now facing the reputational consequences of that error.
“The emails in question all clearly contained marketing material, as they sought to persuade and encourage customers to use their card to make purchases. Amex’s arguments, which included, that customers would be disadvantaged if they weren’t aware of campaigns, and that the emails were a requirement of its Credit Agreements with customers, were groundless.
“Our investigation was initiated from just a handful of complaints from customers, tired of being interrupted with emails they did not want to receive. I would encourage all companies to revisit their procedures and familiarise themselves with the differences between a service email and a marketing email, and ensure their email communications with customers are compliant with the law.”
Here are the definitions of marketing and servicing emails in the eyes of the ICO.
Definition of direct marketing
The definition of direct marketing in the Data Protection Act 2018 is very broad:
“the communication (by whatever means) of advertising or marketing material which is directed to particular individuals”.
This includes promotional materials as well as advertising materials, by both commercial companies and not-for-profit organisations. Promoting the aims and ideals of a charity is classed as marketing activity.
In contrast a servicing email is described by the ICO as routine customer service messages, such as correspondence with customers to provide information they need about a current contract or past purchase. Here are some examples:
- information about service interruptions
- delivery arrangements
- product safety notices
- changes to terms and conditions or tariffs.
General branding, logos or straplines in these messages do not count as marketing. However, if the message includes any significant promotional material aimed at getting customers to buy extra products or services or to renew contracts that are coming to an end, that message includes marketing material and the rules apply.
This should serve as a warning to keep any messages that could be construed as marketing messages distinctly separate from our servicing emails. And any complaints from clients should, of course, always be taken seriously and lead us to re-consider the messages we are sending to those who have opted out of receiving marketing information.
You can read more about this and other actions the ICO has taken here.
If you are unsure about the legality of your marketing campaigns, give us a call and we can help you to get it right.