Useful DPC Case Study about Email Marketing | gdpr
1) Case Study 1 : Prosecution of Guerin Media Limited
The DPC received unrelated complaints from three individuals about unsolicited marketing emails that they had received from Guerin Media Limited. In all cases, the complainants received the marketing emails to their work email addresses. None of the complainants had any previous business relationship with Guerin Media Limited. The marketing emails did not provide the recipients with an unsubscribe function or any other means to opt out of receiving such communications. Some of the complainants replied to the sender requesting that their email address be removed from the company’s marketing list. However, these requests were not actioned and the company continued to send the individuals further marketing emails. In one case, nine marketing emails were sent to an individual’s work email address after he had sent an email request to Guerin Media Limited to remove his email address from its mailing list.
The DPC’s investigation into these complaints established that Guerin Media Limited did not have the consent of any of the complainants to send them unsolicited marketing emails and that it had failed in all cases to include an opt-out mechanism in its marketing emails.
The DPC had previously received four similar complaints against Guerin Media Limited during 2013 and 2014 in which the company had also sent unsolicited marketing emails without having the consent of the recipients to receive such communications and where the emails in question did not contain an opt-out mechanism. On foot of the DPC’s investigations at that time, the DPC warned Guerin Media Limited that it would likely face prosecution by the DPC if there was a recurrence of such breaches of the E-Privacy Regulations. Taking account of the previous warning and the DPC’s findings in its current investigation, the DPC decided to prosecute Guerin Media Limited for 42 separate breaches of the E-Privacy Regulations.
The prosecutions came before Naas District Court on 5 February 2018 and the company pleaded guilty to four sample charges out of the total of 42 charges. Three of the sample charges related to breaches of Regulation 13(1) of the E-Privacy Regulations for sending unsolicited marketing emails to individuals without their consent. The fourth sample charge related to a breach of Regulation 13(12)(c) of the E-Privacy Regulations for failure to include an opt-out mechanism in the marketing emails. The Court convicted Guerin Media Limited on all four charges and imposed four fines each of €1,000, i.e. a total of €4,000. The company was given a period of six months in which to pay the fine. It also agreed to make a contribution towards the prosecution costs incurred by the DPC.
Marketing to work email addresses
There is a common misconception that the sending of email communications to individuals at a work email address is a form of business-to-business communication where consent of the individual is not required. The E-Privacy Regulations allow a carve out to the default rule (i.e. that the sending organisation must have the consent of the receiving individual) which allows for such communications to be sent to an email address that reasonably appears to be one used by a person in the context of their commercial or official activity. However, in order to rely on this exception to the general rule requiring consent, the sender must be able to show that the email sent related solely to the recipient’s commercial or official activity, in other words, that it was a genuine business-to-business communication. In effect, this means that marketing material that is directly relevant to the role of the recipient in the context of their commercial or official activity (i.e. within their workplace) may be sent by an organisation without the prior consent of the recipient. However, this was not the case in the circumstances at issue. Instead, the marketing communications sent by Guerin Media Limited related to attempts by that company to sell advertisement space in various publications and to sell stands at exhibitions. However, none of the individual complainants who received those communications had any role in relation to marketing related matters within their own workplaces.
While not directly applicable here, as the complainants were all individuals, organisations should also take note of a further rule in the E-Privacy Regulations concerning situations where the recipient of an unsolicited direct marketing communication is not an individual (e.g. the email address used is a solely company/corporate one and does not relate to the email account of an individual, whether at work or otherwise). In such a case where the company/ corporate recipient notifies the sender that it does not consent to receiving such emails, it is unlawful for the sender to subsequently send such emails.
This case is an important demonstration that any organisation engaging in electronic direct marketing activities should carefully establish the basis on which it considers that the primary default rule requiring a sending organisation to have the consent of the recipient does not apply to it in any given case, and how it can demonstrate this. The case also illustrates the importance of including an opt-out mechanism in each and every electronic direct marketing communication as failure to do so constitutes a separate offence, (in addition to any offences in relation to failure to obtain consent) in respect of each such email/ message.
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