31 December 2008
Failure to respect opt-outs from direct marketing by email
I received a complaint from a data subject regarding direct marketing emails she had received from X.com.  The complainant provided my Office with copies of several of the marketing emails that she had received from the company as well as copies of her attempts to unsubscribe.  It was clear from an initial examination of this material that she had followed the 'opt out' instructions contained in the emails but, in spite of that, she continued to receive the unwanted emails.  I was  particularly concerned about the number and frequency of emails that she continued to receive after her efforts to unsubscribe.  On examination of the complaint, it appeared that the company was committing offences by failing to record the opt-out preference of the complainant and by continuing to send the complainant direct marketing emails, contrary to the provisions of S.I. 535 of 2003. 
My Office commenced an investigation of this matter.  We requested that X. immediately delete the complainant's email address from its marketing database.  We also sought an explanation as to why her unsubscribe requests were not respected by the company.
X. responded by advising that it had suffered a serious systems error which resulted in loss of data.  As a result the company unintentionally continued to use an older version of its database.  The company removed the complainant's email address from its database and it agreed to suspend outbound emails until its unsubscribe lists were fully reconciled with the database.  It conveyed an apology to the complainant and, as a gesture of goodwill, it offered the complainant a gift to the value of €100 from its online shop.  This was accepted by the complainant as an amicable resolution of her complaint.
I was satisfied with the corrective measures taken by X. to resolve this complaint and to prevent any recurrence.  This case highlights the obligations imposed on marketers to ensure that they respect the preferences of the general public who do not wish to receive marketing communications.  This is even more important when the person makes efforts to refuse the receipt of further communications.