ICO Fines UK ISP Virgin Media GBP50,000 for Email SPAMMING UPDATE

The Information Commissioner’s Office (ICO) has today hit broadband ISP and TV operator Virgin Media (VMO2) with a fine of £50,000 after they were found to have sent 451,217 direct marketing emails to people “who had previously opted out of marketing communications” from the same operator.

The situation first came to the ICO’s attention in August 2020 after it received a complaint from one of the operator’s customers about the aforementioned email, which had itself been received a few days earlier on 4th August.

The message itself, which took the form of a price notification, actually appeared to be a fairly innocuous one, and thus we’ve pasted its contents below for context. However, the complainant viewed this as being “basically a service message dressed up as an attempt to get me to opt back in to marketing communications,” which they had already opted out of receiving.

Content of Virgin’s SPAM Email

We want to let you know that we won’t be raising your price this year.

This means the price you pay for your current package right now will stay the same in 2020.

We’d like to stay in touch about all the great Virgin Media stuff we have on offer for you. You have currently said no to receiving marketing messages from us, which means that we are not able to keep you up to date with our latest TV, broadband, phone and mobile news, competitions, product and bundle offers via online, email, post, SMS, phone.

You can change your preferences by simply registering or signing in to virginmedia.com/optin. Click ‘My Profile’, then ‘My Preferences’.

The investigation found that Virgin Media had sent a total of 1,964,562 emails concerning their price freeze on the same date, with 1,303,671 going to those who had opted in to marketing communications. But some 209,376 were also sent to those who had opted-out of their marketing communications.

In addition, it sent 451,515 emails to opt-out customers with the Marketing Preference Reminder, 451,217 of which were received. The email received by the individual who had complained to the ICO was within this category.

The ICO found that Virgin Media does operate a suppression list for marketing communications, but the suppression process was only applied “for opted-out customers who Virgin Media considered were unlikely to have changed their mind about their marketing preferences.” Oops.

ICO Ruling

Virgin Media, as the sender of the direct marketing, was required to ensure that it was acting in compliance with the requirements of regulation 22 of PECR, and that valid consent to send those messages had been acquired.

In this instance, the requisite consent was not obtained because the 451,217 recipients of the direct marketing had opted out of marketing communications. No issue arises as to whether consent was “freely given”, “specific”, “informed” and “unambiguous”, because consent was not given.

The full ruling can be downloaded here (PDF) and should hopefully serve as a useful reminder to others about how to operate such systems.

UPDATE 4:24pm

Virgin Media has kindly issued a response to this.

A Virgin Media spokesperson said:

“While the email communication sent to customers did not advertise our products or services, we do not plan to appeal the ICO’s decision, and we will continue to fully respect our customers’ marketing preferences.”