EE feels the sharp-end of the opt-in stick

EE is the latest firm to feel the rising wrath of the Information Commissioner’s Office as it is forced to cough up £100,000 for opt-in violations during 2018.

The messages, which were sent back in early 2018, encouraged customers to use a new feature but also to suggest device upgrades. EE claimed the communications were sent as ‘service messages’, but due to the presence of directing marketing, fell afoul of the guidance on electronic marketing put forward by the ICO.

“These were marketing messages which promoted the company’s products and services,” said Andy White, ICO Director of Investigations. “The direct marketing guidance is clear: if a message that contains customer service information also includes promotional material to buy extra products for services, it is no longer a service message and electronic marketing rules apply.

“EE Limited were aware of the law and should have known that they needed customers’ consent to send them in line with the direct marketing rules. Companies should be aware that texts and emails providing service information which also include a marketing or promotional element must comply with the relevant legislation or could face a fine up to £500,000.”

EE might feel a little bit hard-done by here, though it is a pretty clear violation of the rules.

As these messages contained prompts to earn EE a few extra quid each month, they clearly fall into the marketing category. EE would have to secured opt-in from these customers in the past, or in the case of ‘soft opt-in’, existing customers would have had to buy relevant products and given the opportunity to opt-out.

In this instance, the ICO accepted EE had not knowingly broken the rules, though as it did intentionally send out the emails it did not escape a fine. A second-batch of messages were sent out to those who didn’t engage with the first, which probably didn’t help the EE case.

Although this is a relatively minor fine, we expect to see a lot more of these investigations over the coming months. Rules around privacy and data protection are being toughened up, and the regulators need to be seen enforcing them. This fine might not be significant when you compare it to total revenues at the BT Group, but it is symbolic; we expect a few more of these ‘gestures’ sooner rather than later.