Virgin's Response

Virgin said the e-mail was sent to announce that Virgin Mobile had become part of the Virgin Media group, because customers might want to opt in to receiving marketing communications once they heard that news. They said the e-mail was not a marketing communication and contained none of the calls to action that were characteristic of such. They needed to make the announcement to customers who may not have been aware of press announcements and would not have been notified via marketing communications; Virgin said they were entitled, under the Data Protection Act, to contact customers in infrequent situations where there had been business developments to ensure their data remained up-to-date and accurate.

Assessment

- Upheld

The ASA noted Virgins argument that the e-mail was not a marketing communication but was an update to customers who might otherwise not have been aware of the change that had taken place. Because, however, it did not include only information about the change but included prize incentives and text such as "What great stuff could you be missing out on?", " ... you can get your hands on even more exclusive deals" and "As a thank you, youll be entered into our prize draw to win a free HTC HD2* phone ... ", we considered the e-mail was a marketing communication. We noted Virgin did not have the complainants consent to send him marketing communications by e-mail. We therefore concluded that Virgins database practice breached the Code.

The ad breached CAP Code clauses 43.9 and 43.13c (Database practice).