The High Court has considered whether an online marketer is entitled to use bought-in data to top up its databases to execute targeted direct marketing campaigns via e-mail and SMS messages. acces)

The defendant, Givemefootball Ltd, hosts the Professional Footballers' Association website which runs the PFA Fans Awards, in which football fans vote online for their favourite players. The claimant, Playup Interactive Entertainment (UK) Pty Ltd, operates an interactive gaming business that allows betting on sporting events via mobile phones or the internet for a share of a prize pool.

The claimant agreed to sponsor the PFA Fans Awards and entered into an endorsement agreement with the defendant. In return for the sponsorship fee, the defendant agreed to provide the claimant with certain "targeted marketing opportunities and benefits" on a sole and exclusive basis.

Among other things, the defendant agreed to send the following marketing communications on behalf of the claimant:

-Monthly marketing e-mails to "at least one million (1,000,000) opted-in recipients who are contained in databases owned or controlled by [the defendant]".

-Bi-monthly marketing SMS messages to the "Mobile Devices of at least two hundred and fifty thousand (250,000) opted-in recipients who are contained in databases owned or controlled by the [defendant]".

The defendant also represented and warranted that its data subjects had "provided the [defendant] with prior notifications of their consent to receiving direct marketing from the [claimant]".

When the claimant discovered that a large proportion of the defendant's database of "opted-in recipients" had been bought in from a third party, it terminated the Agreement, claiming damages for breach of contract and certain repayments. The defendant denied any breach and counterclaimed for the balance of the sponsorship fee.

The following questions were addressed:

1) Whether the references to "opted-in recipients" in the Agreement referred only to data subjects who had opted-in to receiving marketing communications via the PFA website, or whether it could also refer to data subjects with known sporting interests who had opted-in on unrelated third-party websites to receiving marketing from other companies. In this regard, the judge found that buying in data did not meet the contractual obligation to supply "opted-in recipients". Although the Agreement was not specific about what a recipient must have opted-in to, the judge concluded that it must mean that a recipient had opted-in via the PFA website. The essential purpose of the Agreement was to give the claimant access to commercial opportunities associated with the PFA Fans Awards, and this was inconsistent with buying in third party data. Commercially, a message sent to someone who had previously dealt with the defendant would be more likely to get a positive response than a message sent to someone whose details had been bought in.

2)  Whether the warranty from the defendant that its data subjects had given it their consent to receiving direct marketing from the claimant required that the data subjects' consents must be given specifically to the defendant and must relate to direct marketing from the claimant, or whether it was sufficient that data subjects had given their consent to a class of which the defendant is a member to receiving direct marketing from a class of which the claimant is a member. There was a fundamental difference between the "avid football fans" who opted-in to the PFA website and members of the public who happened to say that they were football fans or sports interests fans. The claimant had agreed to pay a substantial sponsorship fee to the defendant in return for access to avid football fans. If it had wanted to gain the benefit of a marketing campaign that was directed at individuals who were not avid football fans, it could have done so more cheaply and on more favourable terms, for instance, through a Google campaign. The defendant's interpretation of "targeted" would render any anticipated added value from the defendant's marketing campaigns worthless.

This case regarding the considerations of how far an individual's consent to receive direct marketing extends when that individual's data sold on to third parties have practical implications for the online marketing industry. It also provides useful guidance on the meaning of the terms "opted-in" and "targeted", reminding marketers and entrepreneurs that: (i) unless specifically agreed in advance with the supplier, it is generally not possible to have exclusive use of bought-in data; (b) bought-in data may not be appropriate for use in targeted marketing campaigns or when data mining.