No Means No -- And A 'Really?' Could Soon Cost 20m Euros

It's hard to think of any other rebuke than the sporting pundit's favourite, "schoolboy error" when reading the news that has been fined GBP80,000 by the Information Commissioner's Office (ICO). Its also hard not to think again in punditry terms that if companies are struggling to get it right today, what chance do they have next May when they move up league and marketing and data rules are tightened?

Moneysupermarket's crime? Asking people who said they didn't want to be emailed if they wanted to be emailed. Er, I'm not sure about you, but I'd have thought opting out of receiving emails from an organisation already gave an answer to that question. But no, Moneysupermarket decided to press on ahead and ask around seven million email addresses if they really didn't want any more messages or whether they'd like to come back to the fold and be entered for a prize draw.

It was a similar story at the airline Flybe, which was fined GBP70,000 this spring. It asked just over three million people if they'd like to change their mind and be on their email list. This coincided with a fine for carmaker Honda. It was punished to the tune of GBP13,000 for the less serious mistake of emailing its customer services base to see if people would like some marketing materials in addition to messages they would normally receive, typically about servicing one would presume. 

The latter is clearly more a case of overstepping the mark than the Moneysupermarket and Flybe cases, which could be better described as acts of actively going against customer and prospects' wishes and earning well-deserved fines.

The point is, however, that asking someone who has said no to email marketing is already against the rules. But take a look at the fines. They're not the kind of fee you'd find in petty cash, but they're not crippling. That is all about to change, however, and organisations have be game-ready by next May as new rules become law in the form of the General Data Protection Regulation (GDPR) and the revised Privacy and Electronic Communications Regulation (PECR).

The big takeaway here is that it cements in law everything the guys above got wrong. People have to give a clear sign that they have given an informed decision to be marketed to, and it cannot come at a cost. Hence, Moneysupermarket would have broken another rule by offering entrance in a prize draw only for those signing up to be contacted. 

So, unless you can categorically show that someone has given a clear indication they want to be marketed to, and that decision was informed and not influenced by an offer they would not have received otherwise, then you really need to go back to the drawing board with your preferences strategy.

I put the levels of fine above to make a very important point. We're no longer going to be in a soft-touch regulatory framework. From next May, fines will be up to 4% of global turnover or 20m Euros. The days of a slap on the wrist and a fine of a few tens of thousands of pounds will be long gone.

So the point remains. If companies are getting it wrong now, and contravening the law in such an obvious way, what hope do we have come next May when the bar will be significantly raised alongside a massive hike in fines?

1 comment about "No Means No -- And A 'Really?' Could Soon Cost 20m Euros".
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  1. Robin Caller from LOLA GROVE, July 24, 2017 at 5:57 p.m.

    Dear Sean,

    20,000,000 is relevant for companies with less than 500,000,000 turnover. Most, indeed. 

    Moneysupermarket would be good for the 20,000,000 cap because they (only) make 316,400,000 in revenue (2016).

    But a typical automotive manufacturer, one from France for example, rhymes with pengoat, has annual revenues of 51,243,000,000

    That would cap out a maximum fine at circa 2,049,000,000
    If you want to come with the big headlines, why stop at a mere 20,000,000?


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