Having threatened to file a claim for compensation, in pursuant to Section 13 DPA 1998, Go Outdoors agreed to settle the matter out of court.
I visited a Go Outdoors’s store in November 2017 to purchase a new pair of walking boots. The Defendant operates a discount card at an annual cost of £5. The discount card allows customers to purchase an item for less than it would cost without the card. At the check-out, the defendant requested my e-mail address as part of the discount card registration process.
A few days later, Go Outdoors started sending me unsolicited direct marketing e-mails. At the bottom of each e-mail it stated, ‘This e-mail was sent to [my e-mail address] because you have signed up to our newsletter either in-store or online’. I was of the view that I had not consented to receive such marketing. I sought compensation from Go Outdoors and they replied as follows:
When signing up to a discount card with us, you should be asked whether you would like to receive our mailing or not. It appears that this procedure was not followed and you were set up for the mailing without consent.
You have been receiving the emails from us due to a human error for which we are sincerely sorry. If you can confirm which store you purchased the discount card in and if possible the name of the till staff? We can then make sure your comments are passed onto the store manager to prevent future incidents and ensure the staff gets some in depth training regarding the new regulations.
To clarify, when I signed-up to the discount card, I was likely being opted in to receive marketing e-mails by default. Go Outdoors were likely relying on Regulation 22(3) to justify their data processing by giving me the opportunity to refuse the use of my personal data for marketing – at the point my information was collected. Thus, I’m opted in by default and it’s up to the till staff to make me aware, give me the opportunity to object and to capture my response. Their failure to give me the opportunity to object will result in non-compliance – if they were to start targeting me with marketing e-mails. The same would apply for texts.
This is a flawed process in my view because it’s wholly reliant on till staff to ensure compliance and till staff often tend to be pre-occupied with making sales. A far safer option is to have individuals opted-out by default so that they have to perform an action to opt-in. This way, any mistakes made by the till staff will not result in non-compliance. I made Go Outdoors aware of this.
In light of the above, I was of the view that Go Outdoors did not send me e-mails by mistake because their process is flawed – it was prone to human error. All they have to do is opt individuals out by default so that if the till staff failed to obtain consent, it wouldn’t matter because the customer would be opted out. I pressed on with my claim for compensation. Go Outdoors replied as follows:
As we have stated this was not done intentionally and I can only apologise for the upset that has been caused. This matter has been logged with our Marketing team and they will be investigating the matter further with the store in question. We will not be providing any form of agreement with regards to a settlement and can only advise that if you wish to take this further this is done through the small claims court procedure.
The matter was escalated to Go Outdoors’ Marketing Team and they replied as follows:
Following your initial sign up to our membership scheme in 2010, you then visited our store in 2017 and made a purchase and renewed your membership with us. Our systems indicate that you were opted in to receive marketing communications from us at the time of making this purchase.
We can confirm that our procedure in store is for our staff members to inform customers that they will be added to our database to receive marketing emails and give customers the opportunity to opt out from this, at the point of entering their email address into the till system. We have since improved our processes regarding obtaining the marketing preferences of our customers while visiting our stores and, as such, all stores are in the process of introducing a written notice which will be displayed at all tills explaining to customers our marketing preferences procedures.
As you made a purchase from us when you visited our store in 2017, Regulation 22 (3) of PECR applies (the key text of which is set out below):
A person may send or instigate the sending of electronic mail for the purposes of direct marketing where—
(a) that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient. As such, we were not required to obtain your express opt in consent and instead you were given the opportunity to opt out from marketing communications both at the till point and via the unsubscribe link in the emails which you received thereafter.
Our records confirm that you have been sent three emails, one of which was sent to you for the purpose of marketing.
We would like to take this opportunity to provide reassurance that we take all data protection matters extremely seriously. To recognise this, we would like to offer you the sum of [withheld], as a goodwill gesture.
I had a few issues with this response.
Firstly, I disagree with Go Outdoors interpretation of direct marketing. The first e-mail welcomed me and provided me with a £10 off voucher. That e-mail will fall under the definition of direct marketing in my view, because the £10 voucher is promotional – they’re trying to get me to spend money with them so that I can take advantage of the £10 voucher. The second e-mail sought to seek feedback from me. And while I accept that a genuine customer survey will not constitute direct marketing, an e-mail that asks me to provide feedback on a public facing website will in my opinion because its promotional. The third e-mail was clearly marketing.
To be clear, each of the three e-mails informed me why I was receiving it.
- The £10 voucher e-mail informed me that I was receiving the e-mail because ‘you have signed up to our newsletter either in-store or online. I didn’t sign-up to anything‘.
- The feedback e-mail informed me that I was receiving the e-mail because ‘this address was registered to receive updates from us. I did not sign-up to receive updates‘.
- And the outright marketing e-mail informed me that I was receiving the e-mail because ‘you have signed up to our newsletter either in-store or online. I didn’t sign-up to anything‘.
Secondly, it would appear that Go Outdoors had changed their view as they were now claiming that I had been given the opportunity to object. I disagreed with that view and was prepared to argue it in court.
Thirdly, the introduction of the notice at the check-out was my suggestion to them, but it will only help to raise awareness among customers. Ultimately, the obligation is on Go Outdoors to ensure that they comply with Regulation 22 PECR. The obligation is not on the customer.
I rejected Go Outdoors’s gesture of goodwill for these reasons and because in my view, it was not a mistake – it was a failure of process. I informed them that I would proceed with a claim for compensation. Go Outdoors replied as follows:
Thank you for your response. We are keen to ensure that our customers have a positive experience when they deal with us both in store and online and, therefore, regret to hear that you are unhappy about the experience you have had. This is why we are keen to offer you a goodwill gesture, to extend our goodwill to you as a valued customer.
Nonetheless, we recognise that you remain unhappy about the situation and are keen to continue with your proposed course of action. It is our preference to avoid getting into protracted discussions and potential court proceedings with our valued customers, as you would expect. As such, we would like to offer you the sum of [withheld], as requested by you. This sum is offered to you in full and final settlement of any claims, causes of actions or losses you have, have incurred or may bring against Go Outdoors or any of its group companies and it is offered to you without admission of liability.
I accepted the settlement.
I hope that Go Outdoors have fully implemented my advice because under the GDPR, consent has to be freely given, specific, informed and unambiguous. As such, consent will no longer be obtained from inactivity or by default, and this is stipulated in the GDPR. Section 168 of the DPA 2018 also confirms that “non-material damage” includes distress. This makes it far easier to claim compensation in the small claims court. For example, in my court case against Halfords, the judge said that because I had not actually received a marketing e-mail from Halfords, that I had not suffered non-pecuniary damages. It was my failure to demonstrate to the judge that distress alone constitutes damages. The fact that this is now included in the DPA 2018 is a game changer because any contravention of the GDPR or PECR now warrants a valid claim for compensation.
I can see the situation where non-compliant data controllers will have to start offering a standard amount of money as a gesture of goodwill for any abuse, to avoid having to repeatedly defend claims in the small claims court. I represent myself in court which benefits the Defendant but I guess the majority of claimants will be represented.
Go Outdoors reviewed this article before I published it but they chose not to comment.