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Debenhams' misleading unsubscribe link

Do Debenhams require their customers to receive direct marketing - regardless, as a condition of using their Loyalty card?

I was recently looking for a new shirt for a wedding reception and while I was on the DebenhamsDebenhams: opens in a new window website I decided to sign-up to their newsletter by entering my e-mail into the sign-up box. After signing up I received a welcome e-mail almost immediately and about half an hour later I received the first marketing newsletter. At the bottom of this e-mail it states:
Debenhams unsubscribe
Notice that two unsubscribe links are provided:

Unsubscribe from Debenhams newsletters. Unsubscribe from Debenhams emails. If you are a Loyalty customer, by unsubscribing from all emails you are requesting to no longer receive Loyalty related email communications such as statements and reward expiry.

The first unsubscribe link is straightforward enough; if I want to unsubscribe from the Debenhams newsletter I click that unsubscribe link. However, the purpose of the second unsubscribe link isn't so clear. It states: Unsubscribe from Debenhams emails which suggests to me that I can click this link to unsubscribe from ALL Debenhams direct marketing e-mails. Yet there appears to be a condition attached to this second unsubscribe link: If you are a Loyalty customer, by unsubscribing from all emails you are requesting to no longer receive Loyalty related email communications such as statements and reward expiry. This is where I get confused because it's not clear why unsubscribing from all marketing e-mails should have an impact on the use of my loyalty card and my ability to receive the non-direct marketing e-mails associated with the operation of that account.

Let's be clear, the need to provide a method of unsubscribing only applies to e-mails that fall under the definition of direct marketing - as given at section 11(3) of the DPA. This is outlined at section 119 of the Commissioner's Direct Marketing guidance which states:

Organisations must not disguise or conceal their identity in any marketing texts or emails, and must provide a valid contact address for individuals to opt out or unsubscribe (which would mean consent was withdrawn). It is good practice to allow individuals to reply directly to the message and opt out that way, to provide a clear and operational unsubscribe link in emails or at least to provide a freephone number.

Clearly, by unsubscribing, the Commissioner is of the view that one is withdrawing one's consent to receive marketing by electronic mail. Yet one doesn't need to withdraw one's consent from non-direct marketing e-mails because consent is not required for non-marketing communications by electronic mail. Examples of non-direct marketing e-mails are: a security update e-mail, a reset your password e-mail, a response to an account enquiry e-mail, an account statement e-mail etc. In my experience, when determining whether an e-mail constitutes direct marketing, the ICO tends to look at the overall focus of the communication. If the main focus is to promote a product or service then it's likely to constitute direct marketing and will thus require an unsubscribe link. However, if the main focus is for information only then it's unlikely to constitute direct marketing and will not require an unsubscribe link; even though it might contain some marketing.

With this in mind, I'm confused about this second unsubscribe link because it's not clear why Debenhams would require me to stop receiving non-promotional important information related to the running of my loyalty card account - statements etc, if I were to click the link to unsubscribe from Debenhams marketing e-mails. Surely, by clicking this unsubscribe link I am unsubscribing from all direct marketing e-mails and not all e-mail communications. What makes it more confusing is that the Debenhams loyalty card appears to be managed by a third party company called New Day LtdNew Day Ltd: opens in a new window who are regulated by the FCA. If this is the case then it's likely that New Day will have their own regulatory obligation to send statements to the Debenhams loyalty card customers - regardless of what Debenhams might want to do. Indeed, Debenhams were keen to point out on more than one occasion that their loyalty card is managed by New Day. Like I say; it's misleading!

I think it's bollocks! I think Debenhams are trying to give the impression that by unsubscribing from their marketing e-mails (the second unsubscribe link) I will no longer receive important non-promotional information about my loyalty card. In other words, it seems that they're endeavouring to mislead those customers who don't know any better. "Oh, dear, I'd best not unsubscribe from Debenhams marketing as I won't receive my loyalty card statement."

I contacted Debenhams to ask them to clarify. I said:

At the bottom of your marketing e-mails it states:

If you are a Loyalty customer, by unsubscribing from all emails you are requesting to no longer receive Loyalty related email communications such as statements and reward expiry.

But when I unsubscribe from electronic marketing, you can still send me statements and non-promotional information about your loyalty card. So is this a threat then? Are you saying that I MUST forgo my rights under the DPA and the PECR if I want to subscribe to your loyalty card? Please clarify why you’re going to stop sending me loyalty card statements if I unsubscribe from all electronic marketing. Thanks!

Debenhams Head Office responded as follows:

I can confirm if you wish to be removed from the Loyalty Rewards mailing list you will not receive any promotional offers or other information relating to your card benefits.

This simply did not answer my question so I asked again and they replied as follows:

With regards to your query concerning the conditions relating to our Loyalty cards, I can confirm that there are no details provided in the terms and conditions which specify that you are required to receive marketing emails when subscribing to our Loyalty card rewards scheme.

Fair enough, I accept that there may not be an express term in the Loyalty card terms and conditions stating that I must receive electronic marketing but this response still doesn't answer my question. Why will unsubscribing from Debenhams marketing e-mails have an impact on the non-promotional e-mails that I need to manage my Loyalty card?

I continued to seek clarification from Debenhams and they said:

Debenhams works in partnership with New Day, who provide and administer our card services. I cannot view your account information, as this can only be accessed by an FCA approved organisation.

I can confirm if you wish to be removed from the Loyalty Rewards mailing list you will not receive any promotional offers or other information relating to your card benefits. Please be aware that this does not affect you receiving your monthly statements or important information about your card.

If you do not wish to receive any communication via email, you will need to contact New Day directly.

Isn't this a glaring contradiction though? The unsubscribe link states:

If you are a Loyalty customer, by unsubscribing from all emails you are requesting to no longer receive Loyalty related email communications such as statements and reward expiry.

But Debenhams customer services have since stated that:

Unsubscribing from promotional offers or benefits... does not affect you receiving your monthly statements or important information about your card.

Both statements cannot be true. I sought further clarification from Debenhams and they said:

We have reviewed our e-mail newsletter sign-up procedure and consider it to be compliant with the ICO guidance on direct marketing. If you have any further issues in relation to this matter we suggest you contact the ICO directly.

I contacted Debenhams again to let them review the article prior to publishing it and they said:

We have reviewed your post and there are numerous factual inaccuracies in it. However we do not intend to engage in an in-depth discussion with you on these and if you wish to report your concerns to the ICO then we will discuss any concerns they have directly with them.

Well, if there are factual errors they've had an opportunity to clarify what they are. What's more likely is that they're not able to engage in an in-depth discussion with me because they're not qualified to do so. Which begs the question: why are Debenhams Customer Service staff dealing with data protection enquiries?

I've contacted New Day to see what they've got to say and if necessary I'll submit a complaint about New Day to the FCA in the first instance. Once that's been concluded I'll submit a complaint to the ICO about Debenhams.

All Debenhams had to do here was to admit that it's misleading, apologise and change it. As it stands though, I'm confident that Debenhams will be made to change this misleading unsubscribe link - one way or another. Let's see.

Update: 20.10.14

Debenhams have given me an update as follows:

In respect of the inaccuracies in your latest draft of your blog post please note that loyalty cards are not the same as store cards and as such store cards with New Day are in no way linked to loyalty card statements. Loyalty cards relate to our Beauty Club cards. Those customers signed up to our Beauty Club cards receive separate marketing emails in which they have the option to unsubscribe from Beauty Club marketing emails or from all emails including their Beauty Club card statements (also referred to as loyalty card statements). Customers who are not signed up to our Beauty Club cards can also choose only to opt out of marketing emails or to opt out of all emails (customers can opt out of all emails from within a specific Beauty Club email or a general marketing email). As already stated no customer is required to receive marketing emails in order to receive loyalty card statements.

The confusion is becoming more apparent.

Previously, two different members of staff have told me, in response to my enquiry about the second unsubscribe link in the newsletter, that 'Debenhams works in partnership with New Day, who provide and administer our card services'. Yet in the response above it's clear that there's a big difference between a loyalty card (managed by Debenhams) and a store card (managed by New Day). But if Debenhams' own customer service staff don't understand the difference between an internally managed loyalty card and an externally managed store card then how on earth do they expect their customers to get it?

I've also been previously informed that Debenhams's customer service staff are trained to deal with data protection enquiries but it's clear to me that there's no process here. If you raise a support ticket, you may or may not get an answer to your enquiry. If you're lucky enough to get an answer, then the accuracy of that answer depends on who deals with your question. And... even when you get someone who seems capable of answering your question they still don't answer it. Debenhams still hasn't answered my original question - they still haven't explained why a Beauty club card holder cannot opt-out of ALL electronic marketing without it impacting on their Beauty card service - a service that includes the individual receiving non-promotional statements.

For example, let's say that I'm a Beauty card holder. The Debenhams beauty card is a loyalty card right - managed by Debenhams. As part of the beauty card service - agreed by contract, I receive non-promotional communications including a statement of my account activity. Now let's say too that I'm also subscribed to the Debenhams newsletter. If I were to then decide that I no longer wished to receive any electronic marketing from Debenhams, then why should that decision to withdraw my consent to ALL electronic marketing have an impact on the beauty card service? Why should my wish to opt-out of of all electronic marketing also require me to opt-out of receiving the non-promotional statements which I'm contracted to receive when I sign-up to the beauty card?

Like I say, Debenhams still haven't answered my question.

If you are a Loyalty customer, by unsubscribing from all emails you are requesting to no longer receive Loyalty related email communications such as statements and reward expiry.

Bearing in mind that a data controller is only required to have an unsubscribe link in e-mails that constitute electronic marketing, do Debenhams require their data subjects to receive electronic marketing as a condition of subscribing to their club card service? If not, then why is the second unsubscribe link conditional? Why should my decision to opt-out of all electronic marketing e-mails have an impact on me receiving non-promotional e-mails such as club card statements? I'm not saying that Debenhams can't put unsubscribe links on non-promotional e-mails but they're not obliged to do so and if they want to do this then just put one at the bottom of each statement.

I am still of the opinion that this is a misleading unsubscribe link designed to stop customers from unsubscribing from electronic marketing by threatening to also cancel the essential service e-mails required to operate the club card service. What Debenhams need to do here is modify the second unsubscribe link so that individuals can opt-out of all direct marketing regardless, and then if they want, put separate unsubscribe links on the non-promotional e-mails. Problem solved.

This is what happens when companies don't have a dedicated compliance person in place - they just take the piss because they don't know what they're doing.

Added: 02.10.2014 | Updated: 20.10.2014