ICO's Fine Against Amex: How It Impacts Email Marketers

This article is written by Steve Henderson who is a member of the Email Council and Chair of the Legal and Deliverability Hub.

In May 2021 the UK ICO fined American Express (“Amex”) for sending “service message” emails that contained marketing. This article explains the ruling and explains the practical lessons on how this ruling can be used by marketers to improve their marketing and communication campaigns.

What happened?

Between June 2018 and May 2019 Amex sent over 50 million emails to their customers (card members) which they classed as non-marketing service emails. Of these, 4 million emails were sent to customers who had opted out of marketing communications.

Amex sends service messages to customers regardless of their marketing preference.

During this period Amex received 22 complaints and the ICO received 3 complaints about this email communication.

The ICO investigated and determined that some of the emails that Amex classified internally as service messages contained marketing material.

May 2021, the ICO fined Amex £90,000 for breaching the Privacy and Electronic Communications Regulations (PECR) which sit alongside the Data Protection Act and the UK GDPR. PECR gives people specific privacy rights in relation to electronic communications, and it is the implementation of The Privacy and Electronic Communications Directive (EC Directive) in the UK.

Interpreting the ruling

This is a very useful ruling because it provides specific regulatory guidance and wording on a difficult grey area for marketing professionals and those who provide guidance to marketers.

The ICO ruling gives very specific reasons where they deemed Amex - and other organisations-to have made a mistake:

1. The email content is not a service message if the content is designed to encourage customers to make purchases.
2. Amex failed to review its marketing and communication model despite the complaints that they received.

The following examples provided by the ICO show specific wording they deemed to be promotional or marketing in nature which should not have been sent to customers who had opted out of marketing:

The above wording examples are what the ICO highlighted to demonstrate that the content was marketing. Although wording like this may be seen by marketers and copywriters as nothing more than making the communications easier to read and understand, these examples give very clear guidance on the type of language and content that must not be included in pure service messages sent to those who have opted out of marketing.

Lessons Learned – practical guidance for marketers.

1. Review email content and campaign objectives closely. Anything relating to an encouragement to purchase will almost certainly be classed as marketing. If one of the KPIs for the campaign is related to sales, revenue, or conversion; then the campaign is almost certainly marketing. Note that in addition to this, the ICO expand the definition of marketing to include the promotion of the organisation’s “aims and ideals” as well as the sale of products and services. Full details can be found in the ICO’s Direct Marketing Guidance.

2. If in doubt, if a service message needs to be sent to customers and some of those are opted-out of marketing, create two versions of that content. The version being sent to customers opted-in to marketing can benefit from your preferred content. The version being sent to those customers opted-put of marketing can be made more factual and plain, containing no wording that could be interpreted as marketing.
3. Don’t leave things to chance and get expert advice. The ICO website and helpline are available for marketers who may require clarity in their practices. If you are lucky enough to have legal resource available; involve that team in your content review decision-making process. Remember your trade bodies such as DMA are also there to help.

Links for further reading:

ICO explanation of the case

Full wording of the ruling

ICO Direct Marketing Guide