Virgin’s service email to customer who had opted out of marketing communications broke CAP Code

Virgin Media breached the CAP Code by emailing a customer who had opted-out of marketing communications with details of other aspects of the service that the customer may be missing out on. Virgin argued that the email had been sent to inform the customer that Virgin Mobile had become part of the Virgin Media group, but the Advertising Standards Authority disagreed and said that it was really a marketing communication. It did not just include information about the change, but went further and  described prizes and referred to exclusive deals.

The CAP Code is a code of practice governing the content of adverts and marketing communications, and it is administered by the ASA. Although the Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: ‘This is a tricky one for businesses. It is possible under the Data Protection Act to inform customers who have opted-out of marketing communications, as part of normal contact with them, of a change of service or even a new aspect of the service that they may not otherwise be aware of. But specifically promoting to them or telling them what they are missing is not permitted. It can be a very fine line and a grey area, as this case has shown.’