
John Lewis fined over spam emails - iamben
http://www.thedrum.com/news/2014/06/02/john-lewis-fined-over-spam-emails
======
dirktheman
This comment right below the article: "Using pre-populated opt-in boxes now
means breaking the law?"

Yes. It does mean exactly that. You need my permission to send me unsollicited
marketing emails. The law (at least here in the EU) is very clear about that.

I'm a marketer, and I never understand why companies do this. I'd much, much
rather have a smaller list of people who actively signed up for my emails than
a large list of people who you've conned into subscribing. CTR and conversion
on these lists are rubbish, and annoying people is never a good tactic for a
long-term business relationship. This goes the same for people who you've done
business with. If they did not actively sign up for your newsletter you
should't send it to them. Legal or not.

The best way to grow a high-quality list? Let people subscribe to it (opt-in,
not opt-out) and if they didn't engage/open the email for the past 5-10
newsletters or so, inform them they'll be bumped off the list. In a friendly
way, of course, but still.

~~~
claudius
And, err, how is a “pre-populated opt-in box” not exactly the same as opt-out?
In order not to receive spam, the user has to take an action (i.e. opt out) by
unticking the box.

~~~
ColinWright

        >>> "Using pre-populated opt-in boxes now means breaking
        >>> the law?"
    
        >> Yes. It does mean exactly that. You need my permission
        >> to send me unsolicited marketing emails.
    
        > ... how is a "pre-populated opt-in box" not exactly
        > the same as opt-out? In order not to receive spam,
        > the user has to take an action (i.e. opt out) by
        > unticking the box.
    

A "pre-populated opt-in box" is exactly the same as opt-out.

EU law requires _opt-in._ Having _opt-out_ is not lawful.

Thus having a pre-populated opt-in box is breaking the law.

 _Added in edit: I didn 't down-vote you. I have little doubt that others
share your confusion, and hence your question adds value. In fact, I've now
up-voted you._

~~~
pessimizer
I don't even think that claudius misunderstood. We're getting so used to
beginning a sentence with "and" as an affectation that we're losing the
ability to recognize it as a continuation.

~~~
claudius
Thank you :) I was after some reason why one could possibly think this to be
opt-in rather than opt-out, but it appears that there truly is none.

------
oneeyedpigeon
The irony of ironies - this is exactly what you see when you try to post a
comment on that article:

[http://imgur.com/4w3uZzZ](http://imgur.com/4w3uZzZ)

------
m0nty
> John Lewis argued that because I had not opted-out of receiving their
> emails, I had automatically opted-in.

I phoned a company which spammed me a few years ago. I had a long conversation
with an annoying man in marketing who assured me it was all perfectly legal
because they had an "unsubscribe" link in the email, and it _worked_! I
pointed out that he also needed my consent to email me, but he was having none
of it. I'm not sure if he was genuinely confused or conveniently
misinterpreting the law. I hope this ruling helps to focus his and others'
attention on what's legal rather than just expedient.

~~~
mnw21cam
I had a bit of a fun exercise that I unfortunately didn't follow through on a
while back. A computer parts retailer started sending me spam, so I replied
along the lines of:

\---

Thankyou for contacting the xxxxx proofreading service. Thankyou for choosing
this service, providing efficient and accurate proofreading services for all
users of email advertising. To use this service, simply send emails to be
proofread to xxx@xxx. Proofreading services will be charged at £200 per email,
and payment is due within one month of receiving an invoice. By sending emails
to be checked, you agree to the charges, and you agree that the primary point
of contact for yourselves is the email address from which the emails
originate. Results and invoices will be sent to this address, so make sure it
is valid. Please do not send emails if you do not agree to these points.

Since you are a new customer, this first email is proofread below for free:

\---

Their email didn't mention that their sending email address would not receive,
and British contract law has a presumption that communication that is sent is
received, so when they followed up with ten or so subsequent spams, all of
which I proofread, I probably would have had a fairly strong case in court to
be paid for my work. Especially given one of their emails had "[pre-send]" in
the subject line. It's kind of a shame I didn't take it any further than
emailing invoices.

~~~
arethuza
For a legally binding contract to be in place don't you need an offer and
acceptance - and silence generally isn't consider acceptance?

~~~
mnw21cam
That's the point - they weren't silent. They continued to send emails.

~~~
parallelist
I’m really interested to know if that would stand up in court

~~~
danielweber
Almost assuredly not. Where did they agree?

Just because I define a series of steps that constitutes them agreeing with
the contract I design, it doesn't mean that following those steps means they
agree.

Absurd example: if the New York Times continues to publish, they agree to pay
me $1000 a day. (This example is missing consideration[1] but you can imagine
that in yourself. It's an absurd example anyway.)

[1]
[http://en.wikipedia.org/wiki/Consideration](http://en.wikipedia.org/wiki/Consideration)

~~~
yebyen
Sure, I agree with you, the courts would most certainly not rule in favor of a
judgement of £200 per e-mail, but I'm sure that's not the point.

They "consented to be billed for proofreading services" every bit as much as
this person "consented to receive their spam marketing e-mails". In other
words, not at any time or in any reasonable form that could have been
construed as consenting or agreement.

I have no doubt the point of the joke was lost on the spammers/marketers, even
if they even ever actually saw those terms and associated invoices.

~~~
danielweber
If I want to make a comment on your website, and you have a form auto-checked
that lets you send me spam, I have at least a choice, and it was something
that, in your absence, I wouldn't automatically have a right to do.

Now the question arises: do I have a right to send things to your inbox? You
certainly have created an interface with an API that I am obeying, but I've
never liked treating APIs as legal constructs (although many of my fellow
nerds wish it were so) so it doesn't necessarily follow.

There is one issue with lack of notification. I could say that anyone who goes
on my property owes me $500,000 for the pleasure of being on my property. I
could even send registered mail to every person on the country to inform them
of this rule. I don't think walking on my property indicates agreement,
because even if they read and internalized my mail they have no way of
remembering.

I really don't know where I'm going with this.

~~~
yebyen
It's really just posturing; hypothetically, going with your example you don't
send those letters because you want or expect to get $500,000 from each
uninvited guest, you send them because when you find the intruders on your
property unauthorized you're going to be able to fire a round into the air and
tell them "this is your second warning".

The goal is to get them to leave, or to never even come. Unless you were
really trolling for $500,000. To part with that example, the law in question
here specifically regarding inboxes requires opt-in, so only providing an
interface to opt-out is directly against the law.

There is definitely no compatible land-owner analogy: if you greeted people at
the border of your property and made them sign a declaration that they would
pay you $500,000 for this temporary use of your property, you might have a
case. They opted in.

I have a harder time imagining a judge who would see it your way when "you
spent the $200 million required to reach every person and you said very
clearly, 'your presence on my property constitutes acceptance of these terms,'
so by law you should get the $500,000."

------
mfjordvald
Irony is that when you try to comment The Drum will ask for your email address
- and then have a pre-ticked input box for their daily newsletter.

Edit: Was already pointed out elsewhere:
[https://news.ycombinator.com/item?id=7839398](https://news.ycombinator.com/item?id=7839398)

------
Theodores
Sometimes you need to do a little bit of investigation of your own to see what
the real story is and, with Sky News, that is definitely highly advised.

Turns out that the producer has a track record of trying to get 'damages' for
this. Here is one incident starring the same Roddy character:

[http://www.marketingweek.co.uk/disciplines/direct-
marketing/...](http://www.marketingweek.co.uk/disciplines/direct-
marketing/opinion/adidass-world-cup-campaign-provides-a-lesson-in-
consent/4010659.article)

You might not like it but the convention is to have the newsletter sign up box
checked. It has been that way for almost two decades now. It is not as if this
Roddy character is some blind 83 year old woman terrified by John Lewis
newsletters, he specifically created an account on the John Lewis website to
specifically get the newsletter specifically so he could take them to court
and get damages.

It is actually relatively hard to sign up to the John Lewis newsletter, you
need to create an account as they don't have a 'subscribe' box on their
homepage. Furthermore, creating an account is something you would only do if
you were making a purchase or specifically wanting to subscribe to their
newsletter.

I think that the Roddy character is the scam artist here and I despise his
ilk, not only has he sold his soul to work for the evil Murdoch empire he is
also a troll.

~~~
danielweber
It sounds like using the legal system as a regulation system. Instead of the
government needing to go look into everyone's business, it lets recipients
become regulators by giving them the ability to extract fines.

------
CaptainZapp
Pre-ticked boxes signing you into "interesting" marketing propaganda are the
pits, no argument here.

But what is even worse is when (for example) you book a flight and the airline
adds some totally useless "insurance" to your booking. Bangkok Airways comes
to mind. This scheme is outright dirty, if not borderline fraudulent.

With some pre-ticked box hidden deeply in the form.

While I believe this to be illegal in Europe it's apparently not around the
world.

The tactic is loathsome and still the amounts are relatively small, so that
it's not worth it to complain to your credit card company. Plus: hey! you
agreed to the crappy, useless insurance to begin with.

~~~
joshvm
Here is how RyanAir do it - one hell of an anti-pattern:

[https://imgur.com/zh95qHq](https://imgur.com/zh95qHq)

------
robjh
I think companies which use weird double negative language by these options on
forms aught to be penalised.

[ / ] uncheck this box if you don't not agree.

~~~
threedaymonk
Or the ones that have two boxes, one positive and one negative:

    
    
        [x] Send me marketing emails
        [ ] Don't pass my email on to third party spammers

~~~
grahamel
or the ones that do something like:

    
    
        [ ] Accept terms and conditions and send me marketing emails*
        *required

------
burriko
I'm mostly surprised that this didn't count as an existing 'business
relationship', which has always been enough in the UK to send marketing emails
to someone. The guy registered with the John Lewis website, and the only
reason to do so is to purchase something. An odd case in my opinion.

~~~
omh
The article says:

 _unless it can be proven that the recipient consented to them or was a
customer – with John Lewis unable to satisfy either requirement_

So it sounds like in this case he didn't actually purchase anything.

I've never been a big fan of the "existing business relationship" rule. It
basically means I have to click an unsubscribe link once for every company I
buy from.

~~~
mnw21cam
When does an "existing business relationship" end? If I buy a £1 widget for
auntieswidgetstore.co.uk, do they have an "existing business relationship"
until the day I die?

In my books, once payment has been made, the goods received, and the sales
contract completed, the business relationship is over. Comments? Anyone here a
(British) lawyer?

~~~
akadruid1
IANAL but the ICO has a readable summary. They say you should be given a
simple way to opt out in every communication:

from
[http://ico.org.uk/concerns/marketing/11](http://ico.org.uk/concerns/marketing/11)

The law says that marketers are allowed to send marketing messages if:

the marketer has obtained your details through a sale or negotiations for a
sale (this includes asking for a quote); the messages are about similar
products or services offered by the sender; and you were given an opportunity
to refuse the marketing when your details were collected and, if you did not
refuse, you were given a simple way to opt out in every future communication.

~~~
jack-r-abbit
To me it sounds like John Lewis met all of those conditions. I can see there
might be some grey area in the first one. But I would argue that when the guy
signed up on their site, he was at least taking the first step in negotiations
for a sale. But it seems John Lewis argued that and lost so I guess I would
lose too.

Edit to add: I do think that pre-checked opt-ins are a bit sleazy.

------
Malarkey73
Perhaps if companies and web-marketers could capture how disinclined I am to
buy stuff from companies that spam me - then this would stop.

I guess they can't AB test that type of unseen negative. But you would think
they might speculate based on their own experience?

~~~
jacquesm
> But you would think they might speculate based on their own experience?

Yes, but they speculate based on their own experience of what happens to their
bottom line, not to what happens with their inbox.

And they find that there are few people like you and a whole bunch of people
that _still_ respond to advertising, no matter how sleazy, un-sollicited, un-
wanted and in general insulting. As long as that doesn't change spam is here
to stay. Which probably means it is here to stay forever.

------
switch007
I am sick of companies that abuse consent. For example, one online retailer -
from whom I have only ever made one purchase, which was returned, due to poor
quality - regularly sends 3-8 emails a month.

Further, their unsubscribe form actually resulted in _another_ spam message.

It's almost a guarantee that when you buy a single item from a retailer,
ensuring you uncheck/check properly all the boxes, you will be bombarded with
promotional marketing emails from them forever.

~~~
TheLoneWolfling
This is why you set up a email address at your own domain, and give any
company asking for your email <company.domain>@<your.domain>

(And possibly complain publicly when unsubscribe links don't work)

Some email providers ignore '+' signs and periods in email addresses, but more
and more companies have gotten wise to that.

~~~
__chrismc
I've found an increasing number of sites use validation preventing the use of
'+' in email addresses (which I used extensively when on Gmail). To get around
this, I use a feature of Fastmail to give me something similar -
<myname>@<company>.<my.domain>. By putting the unique part in the domain, it's
less likely to be stopped by a fussy validator. Combine with some of their
auto-filtering and I have an easy way to track who's abusing their ability to
mail me, and to take action appropriately.

------
grownseed
These sorts of practices are despicable to say the least, and I'm glad to see
the EU is actively fighting against them (or at least more so than most).

Oddly enough however, this gets attention while the same ideas applied in real
life don't. The forceful behavior of advertisers and marketers everywhere
seems to get little notice, despite people like Banksy, among others, trying
to speak out [1].

Similarly, a friend and I went to the movies recently and noticed that while
seat prices have gone up considerably over the years, you now also get a good
fifteen minutes of adverts right before the movie starts. Why should I pay
twice (actively and passively)? At no point before or during the purchase
process was I told that I'd have adverts shoved down my throat.

I keep hoping that advertising is a necessary evil leading to the greater
benefit, but one can dream... [2]

[1]
[http://www.readingfrenzy.com/ledger/2012/03/taking_the_piss](http://www.readingfrenzy.com/ledger/2012/03/taking_the_piss)

[2]
[https://news.ycombinator.com/item?id=6800312](https://news.ycombinator.com/item?id=6800312)

------
parallelist
Perhaps we could use a similar law for software that says you have to opt-in
for that. If you try to install Adobe Reader on a Windows PC, for instance,
you have to untick to install the Ask! toolbar. I don’t like that

------
joetech
I hate spam as much as the next guy, but this is more of a case of the
plaintiff not reading before he clicks and agrees to things. We all do it, but
we don't then sue a company for it. I really wish a ruling like this was made
on a case in which there was no opt-in, but this guy (even by his IN-action of
NOT un-ticking the box) opted in.

~~~
codeulike
You don't understand what Opt In means. In any case, EU law is pretty clear on
this.

------
driverdan
You should always use double opt-in. There's really no reason to not use it.
Your open rates and click throughs will be much higher and you will get far
fewer people flagging it as spam.

------
rogual
A project manager onced asked my team for an opt-in checkbox that, once
checked, would disappear and never be shown again. Thankfully, we managed to
talk him out of it.

------
oneeyedpigeon
The one thing that concerns me about this ruling is:

"As Mansfield was unaware that he had been opted-in the court ruled in his
favour however."

How on earth does one prove they were unaware that they were opted-in?

~~~
hellosmithy
If it were a true opt-in without a pre-checked input as suggested then it
becomes a moot point surely.

------
pling
This is great news. Particularly as John Lewis has a supposedly trustworthy
brand but in reality they're an importer and shit shoveler with an insane
markup and abysmal service. So many problems with them over the years that I'd
rather shop in Argos.

Corporate true colours shining through here.

~~~
tomp
On the other hand, John Lewis is employee-owned and regularly pays out at
least one additional monthly paycheck in profits per year. I shop mostly in
Waitrose (a subsidiary), and as long as their service is excellent and their
food real (e.g. they had the least problems of all UK retailers (with the
possible exception of Whole Foods) in the horse-meat scandal), I will gladly
pay their higher-than-normal margins (though it's not much more expensive than
Tesco).

~~~
pling
The problem I have is that in the space of a year I've had to return and get
refunded:

1\. A sofa that the frame broke on (their own brand one at £2600).

2\. Two pairs of own brand children's shoes which didn't even last a day
without splitting or the lining coming out.

3\. A cot that cracked down one side.

As far as returns go, I was accused on the children's shoe returns of lying
about them despite returning them the very next day after being worn for only
an hour. The sofa died after a month and I had to go via the credit card
company because I was told that they couldnt replace it and it was end of line
so they were at a stalemate with their supplier. The cot, took three letters
and a small claims summons to get them to replace.

Also one fine evening, I needed an SD card for my camera. JL being the only
place open, I went in there. £55 for 2x no brand 8Gb SD cards. And they
wouldn't price march maplin selling them for £28 round the corner which was
overpriced.

Complaints about the above resulted in "we're sorry but there's nothing we can
do".

As for Waitrose I rather like to not have my meat's throat cut and hung upside
down to bleed out but they don't mark that up in there. They do in Morrisons.
As for horse meat, that's what you get if you buy preprocessed foods. Just
don't buy them.

