John Lewis Spamming Prosecution a Warning to Businesses

Department store giant John Lewis has been ordered to pay compensation for illegitimate spam marketing via email.  Existing EU legislation prohibits companies from marketing through persistently sending emails to recipients without their consent.  The Privacy and Electronic Communications (EC Directive) Regulations 2003 states that unless the recipient of those emails has previously notified the sender that he consents to such communications or if the recipient is unaware that they have been opted-in, then businesses may not send unsolicited communications in this way.

John Lewis recently lost its case against Mr Mansfield and has have been ordered to pay him damages as a consequence of continuously sending marketing emails to him even though he had never consented to them being sent.  Mr Mansfield alleged that he had not been aware that he had opted-in to receiving these email from John Lewis.  John Lewis on the other hand said that Mr Mansfield had been given the option to opt-out of receiving spam emails but he had chosen not to.  John Lewis had updated its website and used a pre-ticked consent box, so that anyone who registered an account on its website would be automatically opting-in to receiving marketing emails.

It was held however, that customers may not be aware that by failing to opt-out, they were signing up to opting-in to receiving emails.  It cannot be assumed that you automatically wish to opt-in.  This landmark decision could open the floodgates for customers harassed by spam emails and it could lead to numerous customers seeking similar compensation as Mr Mansfield.

Business or website owners will need to take care and look at the wording on their sites to ensure that customers are not automatically opting-in to receiving email marketing when they may not be aware that they are doing so.  Businesses should therefore ensure that the existence of and content of their privacy policy is therefore clearly made out to customers to avoid sanctions.

For advice and assistance with your website policies and terms and how the John Lewis decision may affect your business, contact the Forbes Solicitors Business Law department on 0800 037 4628 or send an email enquiry using our Contact Form.

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