In a landmark decision, the ASA (Advertising Standards Agency) yesterday held the sender, rather than the list originator, solely responsible for obtaining a recipient's consent to receive promotional emails.

This is ASA's first decision regarding requirement of consent in direct marketing campaigns, ahead of new EU rules due to be enforced later this year. The complainant — a consumer — objected to receiving unsolicited email from seminar organiser The Training Guild, which had purchased a list of what it believed to be businesses that had consented to receive advertising emails.

Marketers are bound by the CAP (Committee of Advertising Practice) code. The code demands that explicit consent is obtained from consumers before marketing can be sent via email or SMS message. Furthermore, the recipient must be given the opportunity to opt out of the scheme on each occasion mail is sent. However, CAP deals only with consumers and not businesses.

But the EU Directive on Privacy and Electronic Communications places similar requirements on all unsolicited email.

In this case, the ASA upheld that although the defendant had purchased the list in good faith it was its responsibility to ensure that recipients had given consent, which it had failed to do. Furthermore, the complainant in this case was a consumer so the list they had purchased could not contain only business customers' addresses.

The ASA ordered The Training Guild to take more care when targeting emails in the future. Failure to comply could lead to sanctions. The lesson: if your company is sending out marketing emails, make sure each recipient has explicitly agreed to receive them.

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