The ACMA’s latest enforcement action against SpinTel is a useful reminder that an old customer database is not necessarily a current marketing list.
SpinTel has paid a $653,400 penalty after sending more than 32,000 marketing emails to former customers. Some had left the telco more than a decade earlier.
SpinTel sought to rely on inferred consent based on its previous relationship with those customers. The ACMA’s view was that the previous relationship was not enough. Once the relationship had ended, it could not simply be assumed that former customers would expect to continue receiving marketing material.
That ties in with the ACMA’s broader guidance on consent. Its preference is for businesses to obtain express consent on clear terms, including what the consent covers, who will use it, how long it will be used and how it can be withdrawn. Where a business relies on inferred consent, the surrounding circumstances and the customer’s reasonable expectations matter.
For businesses with older customer databases, the practical point is to look at the basis on which those databases are being used before starting a new marketing campaign.
How was consent originally obtained? How much time has passed? Is there still an ongoing relationship? Would the person reasonably expect to hear from the business now? And, importantly, could the business demonstrate the basis for consent if challenged?
A customer database can retain its commercial value for years. That doesn’t necessarily mean the consent attached to it does.
The ACMA guidance (see link) is worth a read for businesses using email or SMS marketing.