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On the case - February 2007

February 2007

Who is responsible when marketing emails are sent to lists without permission?


The perennial problem of SPAM continues to bother both privacy regulators and marketers (not to mention annoying a fair number of consumers). Seemingly countless international anti-SPAM groups have formed and met to mutter their discontent, but to date at least, their efforts have had little real impact on the SPAM scourge.


And a scourge it is, especially for legitimate marketers who want to use the email channel for their own messages and are finding themselves crowded out of the in-box by spurious offers for Viagra and dubious stock tips.


Notwithstanding that the European Directive on Privacy and Electronic Communications and the US Can SPAM legislation have laid down the law on email communications there are still far too many non-legitimate sources of email data being offered for rental and sale; these list sources, in turn, feed the non-legitimate marketers with the vital contacts they need.


In the UK, the Information Commissioner’s Office has just re-issued its guidance on marketing by electronic means which includes a stark warning to marketers that they will be held responsible as the “instigators” of email campaigns if the data they use proves to have been collected unfairly. The Advertising Standards Authority has been similarly unsympathetic to marketers who have been sold an email list “pup”, stating that it is the client’s responsibility to check the provenance of the data they are using.


Late last year, however, global giant Microsoft dealt a blow for the legitimate marketing industry and ISPs alike. Microsoft, which owns MSN Hotmail, had become aware that a company called BIZADS (owned by one Paul McDonald) had been illegally trading in email addresses including many Hotmail domains. Microsoft had received multiple complaints from Hotmail account holders about the messages.


The action was taken under the UK’s Privacy and Electronic Communications Regulations and the Supreme Court Act through which Microsoft sought an injunction to stop BIZADS from selling the email addresses which it was pretty clear had been obtained without consent. The company’s actions were argued to be causing damage both to Hotmail subscribers and to Microsoft including increased server costs to deal with the SPAM traffic and brand damage.


The key point was that, although McDonald wasn’t himself sending the messages, he was, in fact, “instigating” them by selling the addresses.


The injunction was granted and the case sets an interesting precedent that not only the user of illegally obtained email addresses but also others in the chain of supply can be held liable for spreading SPAM.

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