Failure to suppress marketing preferences by Mobile network operator [08/04/2010]
In the Spring of 2009 I received complaints from two customers of a mobile network operator (MNO) about the difficulties they were experiencing when attempting to register their preference to opt out of further direct marketing from their MNO.  The difficulties experienced resulted in them receiving further marketing emails, despite indicating to the MNO that they had amended their marketing preferences and opted out. Both individuals informed me that they had made a number of attempts to opt out, including updating their account preferences, and clicking on the unsubscribe link contained in the marketing emails.  The first complainant further informed me that he had communicated with the MNO through the 'contact us' facility on its website and he subsequently received a telephone call from a representative who confirmed that his details would be removed from all circulation lists.  Unfortunately he continued to receive further marketing email.

When my Office contacted the MNO, we were told that in the cases of both complainants, they had provided their email addresses in the context of signing up to its services and neither individual availed of the opportunity given at that time to opt out of email marketing. However, it acknowledged that when both complainants tried to unsubscribe by clicking on a link in the email they received, an error occurred in the server used by the company's data processor to operate the suppression facility, with the result that the marketing preferences of both individuals were not updated to reflect their preferences.  Furthermore, it advised us that due to an administrative error, both complainants' email addresses were selected as part of a marketing campaign and they received an unsolicited marketing email promoting the company's newsletter.  Regarding the first complainant, the company identified a lag period of up to four weeks between the period that the complainant had the conversation with the call centre representative requesting suppression, and the time that his email address was selected from the system for inclusion in the marketing campaign.  The MNO acknowledged that this was unacceptable. However, the company informed us that it had addressed this and had taken steps to ensure that marketing preference changes are recorded and updated in a period of no more than forty eight hours.

As a means of ensuring that issues such as those highlighted in these complaints did not occur again, the company informed us that it was developing an E-learning data protection training programme for all employees which would include a module on the requirements for compiling marketing lists and correctly operating marketing campaigns.  In the interim, it would provide updated guidance sessions to its direct marketing personnel. It also assured us that the technical error in the server used by the company's data processor was a once-off isolated incident and that steps had been taken to mitigate against this occurrence in the future. The company also said that it sincerely regretted that both customers did not receive the high level of customer service that it strives to achieve in the observance of its customers' marketing preferences and it assured my Office that neither individual would receive any further marketing communications from the company.  As a gesture of goodwill for any inconvenience caused to both individuals, the company offered each of them an ex gratia payment of €150 and it extended its apologies to them.

When contacted by my Office, both complainants were happy that the issues raised in their complaints had been dealt with satisfactorily and they accepted the goodwill gesture and apology from the company.

Whilst I am encouraged that my Office has not received any further complaints concerning the marketing operations of that MNO, I was disappointed at the series of flaws in its marketing operations, which placed undue inconvenience on these complainants in attempting to have their marketing preferences recorded and respected.  Regulation 13 of SI 535 of 2003 (as amended) is clear on the legal obligations placed on marketers who wish to obtain and use customer contact details for marketing purposes and on the further obligations imposed on marketers to provide opportunities to those customers to object to the use of their contact details for marketing communications.   In line with my standard procedures in this area, the MNO was issued with a warning as these incidents constituted its first interaction with my Office in this area and any future matters will therefore be considered for prosecution.