Direct marketing text messages sent by Car dealership in breach of data protection law [08/04/2010]
In mid 2009 I received two complaints from individuals who had received direct marketing text messages from a car dealership promoting special offer trade-ins. One of the complainants had purchased a car from the dealership in 2006, whilst the second complainant had used the dealership in 2008 for repairs. Neither individual consented to receiving direct marketing text messages from the dealership. It was also a concern to me that the messages were sent without the inclusion of a cost free facility by which the individuals could object to the use of their mobile numbers for further marketing.
As part of the investigation of these complaints, my Office contacted the dealership to obtain details, if any, of the consent it had in place to send the messages to the complainants and to find out why the messages were sent without an opt out facility. In its response, the dealership informed us that the first complainant had completed a vehicle order form on the purchase of his car, and that the form included a data protection clause which permitted it to contact the complainant in the future. However, having examined the form in question, I could find nothing to indicate that the customer had consented to future contact. The dealership also provided us with a copy of the job card regarding the repair work it had carried out on the second complainant's car. Again, following examination of it, I could find no evidence that it had obtained consent to send this individual marketing text messages.
It was clear to me that the dealership did not obtain the consent of either individual to send them marketing text messages. On the issue of the non-inclusion of an opt out facility in the two messages sent to the complainants, the dealership stated that its telephone number was included in the messages and that this was considered sufficient to let the recipient know that all they had to do to opt out was to dial that number. I do not accept that the inclusion of a telephone number in a marketing text message to inform the recipient of the number to call for the purpose of availing of the advertised offer in the text message meets the requirements of S.I. 535 of 2003 (as amended) with regard to giving the recipient a valid address to which they may send a request that such marketing communications shall cease. Indeed I have already successfully prosecuted a company on this very issue.
In an effort to assist the dealership in achieving understanding and compliance with the legislation concerning SMS marketing, my Office sent it our Guidance Note on the use of electronic mail for direct marketing purposes. We also advised it to ensure that consent to send marketing text messages was obtained from the customer at the point when the customer provides their contact details. As a means of ensuring that no further marketing text messages would be sent by the dealership to any other individual without their consent, we requested it to delete its marketing database of mobile numbers.
Following our investigation of these complaints, the dealership informed my Office that it wished to engage in an amicable resolution process. By way of amicable resolution it offered a letter of apology to each of the complainants and it made a donation to charity. Both complainants were satisfied to have their complaints resolved on that basis. In turn, my Office warned the dealership that if its marketing operations were the subject of any further complaints to us, it was likely that prosecution action would be taken against it.
From a data protection perspective, it is critical that a marketer who wishes to engage in electronic direct marketing obtains consent from the recipient before a marketing text message is issued. Furthermore, marketers are also obliged to offer the recipient an opportunity to object to receiving further marketing text messages. This case is another example of the risks which are taken by marketers who do not take the required precautions before embarking on text message marketing campaigns.