The messages, sent in early 2018, encouraged customers to access and use the ‘My EE’ app to manage their account and also to upgrade their phone; a second batch of messages was sent to customers who had not engaged with the first.

During the ICO investigation, EE stated the texts were sent as service messages and were therefore not covered by electronic marketing rules. However, ICO found the messages contained direct marketing and that the company sent them deliberately, although acknowledges that EE Limited did not deliberately set out to breach electronic marketing laws.

Andy White, ICO director of investigations said: ”These were marketing messages which promoted the company’s products and services. The direct marketing guidance is clear: if a message that contains customer service information also includes promotional material to buy extra products for services, it is no longer a service message and electronic marketing rules apply.

“EE Limited were aware of the law and should have known that they needed customers’ consent to send them in line with the direct marketing rules.”

“Companies should be aware that texts and emails providing service information which also include a marketing or promotional element must comply with the relevant legislation or could face a fine up to £500,000.”

The ICO’s guidance on electronic marketing is clear that marketing messages can be only sent to existing customers if they have given their consent and if they are given a simple way to opt out of marketing when their details are first collected and in every message sent.

People have a right to opt out of receiving marketing at any time, at which point it’s the organisation’s responsibility to stop sending them.