Email marketing prosecution [30/05/2011]

In our Annual Report for 2008, we reported on complaints received from individuals regarding marketing emails from Company X, a large retailer.  In all cases, the complainants had registered for on-line shopping with the company and soon afterwards they began receiving marketing emails.  Using the unsubscribe facility provided, the complainants tried to stop further marketing emails being sent to them, but to no avail.  Following our intervention, the company identified and fixed errors in its unsubscribe system.  The complaints were resolved by means of an amicable resolution involving an apology and a goodwill gesture to each complainant. 

In 2009 I was disappointed to learn that email marketing by Company X emerged yet again as a source of complaint to our Office.  We received a number of complaints from individuals who had attempted to unsubscribe from receiving further marketing emails.  However, the company persisted in emailing them with promotional offers.  One complainant reported that he had used the unsubscribe facility on the marketing emails several times and, when this did not yield results, he emailed the company's Customer Services requesting an opt-out.  While several emails were exchanged between Customer Services and the complainant, Company X continued to send marketing emails and we received a complaint.  Another complainant experienced similar difficulties.  He also attempted to unsubscribe using the facility provided on the marketing emails and, when these attempts failed, he sent an email to Customer Services reporting his efforts to unsubscribe.  He informed Company X that he was reporting the matter to our Office.  Despite this, the company continued to send him marketing emails.  

At the initial stage of our investigation we succeeded in having the email addresses of the complainants opted out of further marketing contact.  It took some considerable time for Company X to establish the cause of the failure to follow-up unsubscribe requests.  Eventually, the company reported that the task of unsubscribing customers had been moved to a different location and that, following the move, the process had failed in some instances.  In addition, it was reported that a separate problem arose when a new website platform had been introduced.  An error in the management of customer preference questions resulted in a failure to record those customers who had unsubscribed from email communication on the database. 

On the basis of our investigation we were satisfied that offences under SI 535 of 2003 (as amended) had been committed.  As this was the second occasion on which this company had come to our attention for breaching the instrument, we decided to prosecute.  The matter came before the Dublin Metropolitan District Court in mid-2010.  Company X entered guilty pleas on four charges related to the sending of marketing emails to individuals who had requested not to receive such emails.  The Court recorded a conviction on two charges and it took the other two charges into consideration.  Penalties of €1,000 were imposed in respect of each of two charges.  The Court awarded our legal costs to us.  In addition, Company X undertook to suspend all email marketing in Ireland until the errors in its opt out systems were corrected.  One month later, the company reported to us that a solution had been found and implemented. 

Unsolicited or spam email is one of the scourges of modern communications.  It is something that affects all email users in their homes, at work or in their businesses.  Most spam email comes from distant parts of the world, predominantly from outside of Ireland and the EU.  Because of its origins, we do not have power to take action against the offenders.  However, we investigate all complaints about unsolicited marketing emails sent by Irish based entities and, as this case study shows, we will not hesitate to use our powers to prosecute offenders if such action is warranted.