Refer a Friend Scheme Legality
It was always clear, unless people wanted to try to take liberties, that a “Refer a Friend by Email” scheme was both within the letter and the spirit of both the Data Protection Act and the eCommerce regulations. It's just that people didn't understand how to implement the scheme properly. The Committee of Advertising Practice has just made it even clearer with new guidance. It makes useful reading., along with the Advertising Standards Authority's adjudication regarding Robert Billington t/a who-remembers-me.com.
But let's get simple, and, to use a trite phrase, Back to Basics
What is a Refer a Friend Scheme?
It's a scheme where a happy visitor to your website likes what they see enough to tell a friend about you. It's viral marketing, in a way, though such schemes almost never have sufficient quirk-factor to make it a true viral scheme.
How is it done?
Usually you provide a field for the visitor to enter their friend's email address, with or without other information about them. The back office system then takes care of the emailing.
What's the problem?
It all sounds very simple, but there are some pitfalls:
- The email address and details entered is personal data, but without permission of the individual whose data it is.
- The email sent out can be classified as Unsolicited Commercial Electronic Communication – SPAM – which is unlawful in some circumstances and distasteful and counter productive in all cases.
- If the data is captured, rather than used transiently, in the database then there is the danger that someone will use it for other (unpermissioned) purposes
- As the Data Controller – organisation responsible for adherence to the law – you are responsible for uses, abuses and misuses of the data – data you never knew you held
So, all Refer a Friend schemes are illegal?
No. Many are, if they've been put together badly, but well constructed ones are both lawful and desirable. There is a simple checklist of things to do in order to be both lawful and ethical:
- Make the email address (at least) of the referring friend a mandatory field,
- Use the referring friend's email address in the body of the email sent, plus any other details they have provided
- Make the subject “<friend> wants you to see this” (or similar wording)
- Open the text with “<friend> has visited our site at <url> and filled out the form there to suggest you visited. If you do not recognise <friend> you may have received this as a mistyped email address. You do not need to take any action. We do not keep your data on any database because of this referral, and you have not been subscribed to anything at all, nor have your details been passed anywhere at all. In fact we keep no records of the matter. We were simply happy to sent this on <friend's> behalf.”
Then put your marketing message, call to action or whatever you choose
Then close with “You will hear nothing else from us as a result of this referral. You have not been added to any database and there is no need to ask for removal”
Finally, close with the name of your organisation, the street address, and the generic email address of your Chief Privacy Officer, together with a link to your privacy policy.
- Note the self imposed restrictions on data, and stick to them
- Send a copy to the referring person. The “cc” field is ideal.
- Optionally consider querying the referring person's domain and email address to determine if they are valid prior to sending the referral. Invalidity implies mischief. Do not send a referral from a mischief-maker
- If you expect high volume mischief, prior to implementation, deploy a “CAPTCHA” check as part of the referral process to minimise the potential for automated abuse
How does that make the scheme lawful?
It sets out competently and professionally the responsibilities you have, ensures that you only process the data transiently on behalf of the referring person, does not enter the data into a database, tells the recipient why they have been emailed, and gives them a full set of contact details to get in touch with for concerns.
It may well be worth documenting this with a “What happens with our ‘Refer a Friend' Scheme page that you link to in a window that opens from a link above the “submit” button and which you also link to from the email you send. That way there are no misunderstandings.
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