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Viral marketing is open to abuse. So when a website that emulates Friends Reunited offered a 'tell a friend' service, UK advertising watchdog the Advertising Standards Authority (ASA) decided it was too great a risk to allow emails to be sent to strangers without naming the friend.

The adjudication is possibly the first ruling of its kind in the country.

Who-Remembers-Me.com was started in 2003 "to provide a complete worldwide service for finding and connecting with old friends", according to the website. Founder Rob Billington was interested in rediscovering people from his past, "but felt frustrated by the limitations of other websites that focused primarily on school friends".

"Inevitably it takes time for word to spread, but [Who-Remembers-Me.com] is well on its way to its first million members," the site continues. "And, if we all make the most of the new 'tell a friend' link, it won’t take long to get there…"

But the site's 'tell a friend' service is open to abuse.

The ASA received a complaint from someone who received an email that stated: "Your email address has been entered into the www.Who-Remembers-Me.com 'tell a friend' link by one of your friends in order for us to send you a short note recommending this website as they feel it may be of interest to you."

The complainant challenged whether his email address had genuinely been submitted to the advertiser's website by one of his friends as claimed, and objected that the emails were unsolicited – i.e. spam.

Founder Robert Billington said he could not reveal any details about who submitted the complainant's email address because of practical and legal restrictions.

But the ASA was concerned that he had not demonstrated that the complainant's email address genuinely was provided by a friend.

A test at the website today shows that no name is needed to send an email to anyone: the sender's name can be completed or left blank. If "Bob Smith is entered as the sender's name, an email is sent saying "Bob Smith has recommended we contact you…" If the field is left blank, rather than return an error message, the service proves substitute words: "a friend has recommended we contact you…"

The ASA wrote: "We told the advertiser that if he operated a facility which, by allowing anonymity, did nothing to discourage third parties from requesting the sending of direct marketing to other people, he ran the risk either of misuse, or that recipients would think that no such friend existed and the emails were merely spam sent by the website owner."

It added that he should consult the CAP Copy Advice team before sending similar emails in future.

The email was deemed to breach the CAP Code, the rule book followed by the ASA, which states: "Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation."

On the spam argument, Billington pointed out that his email had been sent via the 'tell a friend' link to a business domain name. Generally there is no legal requirement for prior consent (or for 'explicit consent' under the CAP Code) for marketing emails sent to business addresses. But the ASA upheld the complaint nevertheless.

It pointed out that the email did not relate to business products, but invited people to register on, and subscribe to, a site full of personal details.

"We questioned why a 'friend' would wish to remain anonymous if he or she was confident that the recipient would wish to receive such mailings," wrote the ASA. "We also noted that similar emails could be sent from the website to private email addresses".

This could be influential in future ASA spam complaints. The ASA seems to be saying: if spamming a business address, you better be selling business services.

The ASA told Billington to ensure his database practice complied with the Code on all occasions.

The case highlights a risk of viral marketing.

When one person forwards a company's marketing email to a friend, the company is unlikely to receive a complaint, even if the email annoys the friend. But when websites run 'tell a friend' services, as many do, a company is sending an email to a stranger. That can amount to spam, in breach of the CAP Code and also in breach of the Privacy and Electronic Communications Regulations.

Struan Robertson, a senior associate with Pinsent Masons and editor of OUT-LAW.COM, said: "There is a risk, but the Information Commissioner has recognised viral marketing as a legitimate practice and has issued guidance on the use of 'tell a friend' services."

Robertson said the guidance does not mention the need to forbid anonymous emails. "Perhaps that is taken for granted," he said, "or perhaps the commissioner is acknowledging that it is very difficult to block fictional sender's details."

But Robertson says the ASA's ruling does not amount to a recommendation to ban 'tell a friend' services. "It is almost impossible to run a service like this without some risk of upsetting email recipients. That doesn't mean websites should abandon these services. All they need to do is follow some steps to minimise the risk."

Many of these are in the commissioner's guidance: do not offer an incentive to visitors to send email, include a consent statement, and tell your visitor you will let his friend know how you got his details. It does not appear that these were followed by Who-Remembers-Me.com.

OUT-LAW has published a free guide today that explains these issues in more detail and adds some additional information from the privacy law team at Pinsent Masons.

Robertson concludes: "The commercial risk with a 'tell a friend' service is fairly low. In the event of a complaint or new guidance from the commissioner or a court, a website can change or even abandon its 'tell a friend' services without collateral damage. In contrast, a high risk exists with data collection practices - get these wrong and you build a database that it may be unlawful to use, making it potentially worthless."

OUT-LAW has published a free guide (registration required) that explains these issues in more detail and adds some additional information from the privacy law team at Pinsent Masons.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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