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Which? fails to obtain consent

The Information Commissioner's Office (ICO) concluded that it was unlikely that Which?New window - the "Consumer Champion", had obtained my consent to send me electronic marketing.

Which? decided that their website members would have two channels for electronic marketing: the first promoted their products and services in general, and the second promoted key features of their website to new customers.

For the first channel, Which? gave me the option to opt-out of electronic marketing with a clearly worded tick box located on the form - which is an acceptable method for obtaining an informed indication of consent. For the second channel though, Which? decided that they wanted everyone to receive the the 'key features' e-mails so they used a consent statement instead of an opt-out. Unfortunately, the consent statement was not located on the form; instead it was hidden away on another page and linked to from the form. But a link to a consent statement is unlikely to be an acceptable method for obtaining an informed indication of consent - because Which? cannot guarantee that I will click the link and read the statement; and if I don't read the statement then I've not been informed.

Which said:

'I can confirm that you did opt out of receiving marketing emails from Which? about our other products and services. However, we do say in our 'Summary of Offer' link that we will email you each week with details of new reviews and the latest news. These emails form part of your Which? subscription and the email you received ('Get the most out of Which?') is the first of these, which are intended to help you realise the full benefits of the subscription you have registered for and can be stopped at any time by contacting us or clicking on the 'Unsubscribe' link at the bottom of the email. We do not market our other products in these emails (we may in those you have opted out from)'.

To be fair, I can see Which?'s point of view, but all they had to do is add the consent statement to the form and they would have obtained my consent to send me the key-features e-mails. What were Which? trying to achieve by hiding it on another page? Bearing in mind that Which? have their own in-house lawyers they should have known better and that's why I submitted the complaint.

The ICO are going to keep my complaint on record so if they're still doing this make sure you submit a compliant.

Added: 20.01.2010