John Lewis fined over spam emails

http://www.thedrum.com/news/2014/06/02/john-lewis-fined-over-spam-emails

by iamben • 12 years ago

68 57 12 years ago

pling2• 12 years ago

This is great news. Particularly as John Lewis has a supposedly trustworthy brand but in reality they're an importer and shit shoveler with an insane markup and abysmal service. So many problems with them over the years that I'd rather shop in Argos.

Corporate true colours shining through here.

tomp• 12 years ago

On the other hand, John Lewis is employee-owned and regularly pays out at least one additional monthly paycheck in profits per year. I shop mostly in Waitrose (a subsidiary), and as long as their service is excellent and their food real (e.g. they had the least problems of all UK retailers (with the possible exception of Whole Foods) in the horse-meat scandal), I will gladly pay their higher-than-normal margins (though it's not much more expensive than Tesco).

pling2• 12 years ago

The problem I have is that in the space of a year I've had to return and get refunded:

1. A sofa that the frame broke on (their own brand one at £2600).

2. Two pairs of own brand children's shoes which didn't even last a day without splitting or the lining coming out.

3. A cot that cracked down one side.

As far as returns go, I was accused on the children's shoe returns of lying about them despite returning them the very next day after being worn for only an hour. The sofa died after a month and I had to go via the credit card company because I was told that they couldnt replace it and it was end of line so they were at a stalemate with their supplier. The cot, took three letters and a small claims summons to get them to replace.

Also one fine evening, I needed an SD card for my camera. JL being the only place open, I went in there. £55 for 2x no brand 8Gb SD cards. And they wouldn't price march maplin selling them for £28 round the corner which was overpriced.

Complaints about the above resulted in "we're sorry but there's nothing we can do".

As for Waitrose I rather like to not have my meat's throat cut and hung upside down to bleed out but they don't mark that up in there. They do in Morrisons. As for horse meat, that's what you get if you buy preprocessed foods. Just don't buy them.

Malarkey73• 12 years ago

Perhaps if companies and web-marketers could capture how disinclined I am to buy stuff from companies that spam me - then this would stop.

I guess they can't AB test that type of unseen negative. But you would think they might speculate based on their own experience?

jacquesm• 12 years ago

But you would think they might speculate based on their own experience?

Yes, but they speculate based on their own experience of what happens to their bottom line, not to what happens with their inbox.

And they find that there are few people like you and a whole bunch of people that still respond to advertising, no matter how sleazy, un-sollicited, un-wanted and in general insulting. As long as that doesn't change spam is here to stay. Which probably means it is here to stay forever.

robjh• 12 years ago

I think companies which use weird double negative language by these options on forms aught to be penalised.

[ / ] uncheck this box if you don't not agree.

threedaymonk• 12 years ago

Or the ones that have two boxes, one positive and one negative:

    [x] Send me marketing emails
    [ ] Don't pass my email on to third party spammers

grahamel• 12 years ago

or the ones that do something like:

    [ ] Accept terms and conditions and send me marketing emails*
    *required

burriko• 12 years ago

I'm mostly surprised that this didn't count as an existing 'business relationship', which has always been enough in the UK to send marketing emails to someone. The guy registered with the John Lewis website, and the only reason to do so is to purchase something. An odd case in my opinion.

omh• 12 years ago

The article says:

unless it can be proven that the recipient consented to them or was a customer – with John Lewis unable to satisfy either requirement

So it sounds like in this case he didn't actually purchase anything.

I've never been a big fan of the "existing business relationship" rule. It basically means I have to click an unsubscribe link once for every company I buy from.

mnw21cam3• 12 years ago

When does an "existing business relationship" end? If I buy a £1 widget for auntieswidgetstore.co.uk, do they have an "existing business relationship" until the day I die?

In my books, once payment has been made, the goods received, and the sales contract completed, the business relationship is over. Comments? Anyone here a (British) lawyer?

oneeyedpigeon3• 12 years ago

You might just want to maintain a wish list which others can make use of. There might be other legitimate reasons for having a user account and not a 'business relationship'. I’ve always been taught that 'opt out' is illegal, so this is a welcome ruling, IMO.

m0nty2• 12 years ago

John Lewis argued that because I had not opted-out of receiving their emails, I had automatically opted-in.

I phoned a company which spammed me a few years ago. I had a long conversation with an annoying man in marketing who assured me it was all perfectly legal because they had an "unsubscribe" link in the email, and it worked! I pointed out that he also needed my consent to email me, but he was having none of it. I'm not sure if he was genuinely confused or conveniently misinterpreting the law. I hope this ruling helps to focus his and others' attention on what's legal rather than just expedient.

mnw21cam3• 12 years ago

I had a bit of a fun exercise that I unfortunately didn't follow through on a while back. A computer parts retailer started sending me spam, so I replied along the lines of:

---

Thankyou for contacting the xxxxx proofreading service. Thankyou for choosing this service, providing efficient and accurate proofreading services for all users of email advertising. To use this service, simply send emails to be proofread to xxx@xxx. Proofreading services will be charged at £200 per email, and payment is due within one month of receiving an invoice. By sending emails to be checked, you agree to the charges, and you agree that the primary point of contact for yourselves is the email address from which the emails originate. Results and invoices will be sent to this address, so make sure it is valid. Please do not send emails if you do not agree to these points.

Since you are a new customer, this first email is proofread below for free:

---

Their email didn't mention that their sending email address would not receive, and British contract law has a presumption that communication that is sent is received, so when they followed up with ten or so subsequent spams, all of which I proofread, I probably would have had a fairly strong case in court to be paid for my work. Especially given one of their emails had "[pre-send]" in the subject line. It's kind of a shame I didn't take it any further than emailing invoices.

arethuza• 12 years ago

For a legally binding contract to be in place don't you need an offer and acceptance - and silence generally isn't consider acceptance?

eli• 12 years ago

Under US law they were probably correct. CAN-SPAM Act does not require consent. (Though it does require more than just a working unsubscribe)

m0nty2• 12 years ago

UK law, in my case. You need consent and recipient must be able to unsubscribe.

Some parts of this are also covered under the Data Protection Act, which is generally taken very seriously (by government, at least) in the UK. You can only use data for the purpose for which it was collected. So just because you have my email address for sending me updates about my order, doesn't mean you can email me with offers unless I agreed to that.

dirktheman3• 12 years ago

This comment right below the article: "Using pre-populated opt-in boxes now means breaking the law?"

Yes. It does mean exactly that. You need my permission to send me unsollicited marketing emails. The law (at least here in the EU) is very clear about that.

I'm a marketer, and I never understand why companies do this. I'd much, much rather have a smaller list of people who actively signed up for my emails than a large list of people who you've conned into subscribing. CTR and conversion on these lists are rubbish, and annoying people is never a good tactic for a long-term business relationship. This goes the same for people who you've done business with. If they did not actively sign up for your newsletter you should't send it to them. Legal or not.

The best way to grow a high-quality list? Let people subscribe to it (opt-in, not opt-out) and if they didn't engage/open the email for the past 5-10 newsletters or so, inform them they'll be bumped off the list. In a friendly way, of course, but still.

claudius2• 12 years ago

And, err, how is a “pre-populated opt-in box” not exactly the same as opt-out? In order not to receive spam, the user has to take an action (i.e. opt out) by unticking the box.

ColinWright• 12 years ago

    >>> "Using pre-populated opt-in boxes now means breaking
    >>> the law?"

    >> Yes. It does mean exactly that. You need my permission
    >> to send me unsolicited marketing emails.

    > ... how is a "pre-populated opt-in box" not exactly
    > the same as opt-out? In order not to receive spam,
    > the user has to take an action (i.e. opt out) by
    > unticking the box.

A "pre-populated opt-in box" is exactly the same as opt-out.

EU law requires opt-in. Having opt-out is not lawful.

Thus having a pre-populated opt-in box is breaking the law.

Added in edit: I didn't down-vote you. I have little doubt that others share your confusion, and hence your question adds value. In fact, I've now up-voted you.

dirktheman3• 12 years ago

It is exactly the same. In fact:

- Opt-out: user has to take action to NOT receive emails

- Opt-in: user has to take action to receive emails

- Double opt-in: user has to take action AND confirm his/her email address.

The double opt-in process ensures that the person who submitted the form on your website is indeed the recipient of the email address. It's not mandatory by law but good practice.

These laws exist in the EU to protect the customer. The OPTA has the power to make you pay a hefty fine (up to €450,000) for sending spam. Unfortunately, these laws do not apply for business to business relationships. In B2B, your company can still send my company unsollicited emails without breaking the law.

switch007• 12 years ago

I am sick of companies that abuse consent. For example, one online retailer - from whom I have only ever made one purchase, which was returned, due to poor quality - regularly sends 3-8 emails a month.

Further, their unsubscribe form actually resulted in another spam message.

It's almost a guarantee that when you buy a single item from a retailer, ensuring you uncheck/check properly all the boxes, you will be bombarded with promotional marketing emails from them forever.

TheLoneWolfling• 12 years ago

This is why you set up a email address at your own domain, and give any company asking for your email <company.domain>@<your.domain>

(And possibly complain publicly when unsubscribe links don't work)

Some email providers ignore '+' signs and periods in email addresses, but more and more companies have gotten wise to that.

__chrismc• 12 years ago

I've found an increasing number of sites use validation preventing the use of '+' in email addresses (which I used extensively when on Gmail). To get around this, I use a feature of Fastmail to give me something similar - <myname>@<company>.<my.domain>. By putting the unique part in the domain, it's less likely to be stopped by a fussy validator. Combine with some of their auto-filtering and I have an easy way to track who's abusing their ability to mail me, and to take action appropriately.

oneeyedpigeon3• 12 years ago

The irony of ironies - this is exactly what you see when you try to post a comment on that article:

http://imgur.com/4w3uZzZ

oneeyedpigeon3• 12 years ago

The one thing that concerns me about this ruling is:

"As Mansfield was unaware that he had been opted-in the court ruled in his favour however."

How on earth does one prove they were unaware that they were opted-in?

dazc• 12 years ago

It is very unlikely someone would opt in by accident if the box was unticked by default.

hellosmithy• 12 years ago

If it were a true opt-in without a pre-checked input as suggested then it becomes a moot point surely.

mfjordvald• 12 years ago

Irony is that when you try to comment The Drum will ask for your email address - and then have a pre-ticked input box for their daily newsletter.

Edit: Was already pointed out elsewhere: https://news.ycombinator.com/item?id=7839398

parallelist2• 12 years ago

Perhaps we could use a similar law for software that says you have to opt-in for that. If you try to install Adobe Reader on a Windows PC, for instance, you have to untick to install the Ask! toolbar. I don’t like that

Theodores• 12 years ago

Sometimes you need to do a little bit of investigation of your own to see what the real story is and, with Sky News, that is definitely highly advised.

Turns out that the producer has a track record of trying to get 'damages' for this. Here is one incident starring the same Roddy character:

http://www.marketingweek.co.uk/disciplines/direct-marketing/...

You might not like it but the convention is to have the newsletter sign up box checked. It has been that way for almost two decades now. It is not as if this Roddy character is some blind 83 year old woman terrified by John Lewis newsletters, he specifically created an account on the John Lewis website to specifically get the newsletter specifically so he could take them to court and get damages.

It is actually relatively hard to sign up to the John Lewis newsletter, you need to create an account as they don't have a 'subscribe' box on their homepage. Furthermore, creating an account is something you would only do if you were making a purchase or specifically wanting to subscribe to their newsletter.

I think that the Roddy character is the scam artist here and I despise his ilk, not only has he sold his soul to work for the evil Murdoch empire he is also a troll.

danielweber3• 12 years ago

It sounds like using the legal system as a regulation system. Instead of the government needing to go look into everyone's business, it lets recipients become regulators by giving them the ability to extract fines.

voyou• 12 years ago

Did you mean to post a different link? That appears to be discussing the same case.

rogual• 12 years ago

A project manager onced asked my team for an opt-in checkbox that, once checked, would disappear and never be shown again. Thankfully, we managed to talk him out of it.

joetech• 12 years ago

I hate spam as much as the next guy, but this is more of a case of the plaintiff not reading before he clicks and agrees to things. We all do it, but we don't then sue a company for it. I really wish a ruling like this was made on a case in which there was no opt-in, but this guy (even by his IN-action of NOT un-ticking the box) opted in.

codeulike• 12 years ago

You don't understand what Opt In means. In any case, EU law is pretty clear on this.

CaptainZapp• 12 years ago

Pre-ticked boxes signing you into "interesting" marketing propaganda are the pits, no argument here.

But what is even worse is when (for example) you book a flight and the airline adds some totally useless "insurance" to your booking. Bangkok Airways comes to mind. This scheme is outright dirty, if not borderline fraudulent.

With some pre-ticked box hidden deeply in the form.

While I believe this to be illegal in Europe it's apparently not around the world.

The tactic is loathsome and still the amounts are relatively small, so that it's not worth it to complain to your credit card company. Plus: hey! you agreed to the crappy, useless insurance to begin with.

joshvm• 12 years ago

Here is how RyanAir do it - one hell of an anti-pattern:

https://imgur.com/zh95qHq

driverdan• 12 years ago

You should always use double opt-in. There's really no reason to not use it. Your open rates and click throughs will be much higher and you will get far fewer people flagging it as spam.

grownseed• 12 years ago

These sorts of practices are despicable to say the least, and I'm glad to see the EU is actively fighting against them (or at least more so than most).

Oddly enough however, this gets attention while the same ideas applied in real life don't. The forceful behavior of advertisers and marketers everywhere seems to get little notice, despite people like Banksy, among others, trying to speak out [1].

Similarly, a friend and I went to the movies recently and noticed that while seat prices have gone up considerably over the years, you now also get a good fifteen minutes of adverts right before the movie starts. Why should I pay twice (actively and passively)? At no point before or during the purchase process was I told that I'd have adverts shoved down my throat.

I keep hoping that advertising is a necessary evil leading to the greater benefit, but one can dream... [2]

[1] http://www.readingfrenzy.com/ledger/2012/03/taking_the_piss

[2] https://news.ycombinator.com/item?id=6800312

John Lewis fined over spam emails

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