The Information Commissioner’s Office (ICO) has fined Papa John’s (GB) Limited (Papa John’s) £10,000 for sending a side order of 210,000 nuisance marketing text and email messages to customers without valid consent between 1/10/19 and 30/4/20, with one customer reporting receiving nearly 100 messages in two months without having given consent.

Under article 22(1) Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), it is not permitted to transmit unsolicited communications for the purpose of direct marketing via electronic mail unless the recipient has previously notified the sender that he consents to receive such messages. Papa John’s had relied on the ‘soft opt-in’ exemption to that rule under article 22(3) PECR, which provides that unsolicited communications via electronic mail may, as an exception to a general prohibition, be sent, if:

  • the sender obtained the recipient’s contact details in the course of a sale or negotiations for a sale;
  • the messages are for direct marketing in respect of the sender’s similar products and services only; and
  • the sender has been given a simple means of refusing the use of his contact details at the time the details were initially collected and subsequently.

The ICO investigation found that Papa John’s was using the exemption for orders placed by phone and customers were not given the option to opt out or provided with a privacy notice.

Whilst it is important for businesses to market and existing customers are often a good source of repeat business, sending large numbers of unsolicited messages out of which customers cannot opt is unlikely to strengthen customer relationships. Inasmuch, besides the legal implications, the vastly improved data privacy landscape that has emerged in recent years has led to many customers being more aware of their rights regarding their personal data and a decreased tolerance for unlawful processing by traders, who need to carefully chew over the commercial rationale of marketing campaigns as well as their legality.

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