Opting-out of marketing inserts in account statement

PIPEDA Case Summary #2005-308

(Principles 4.3.3 and 4.3.8 of Schedule 1)

Complaint

An individual complained when his bank refused to allow him to opt-out of receiving marketing materials that were included in his credit card account statements. These materials, or “statement stuffers,” were advertisements for various products and services, such as magazines or travel insurance, and were being offered by the bank in conjunction with other organizations.

Summary of Investigation

The bank told the complainant and our Office that it was respecting the complainant’s request that it not send him any unsolicited marketing materials through its direct marketing programs and that it not telemarket him. However, the bank considered his request to have it manually intercept his monthly credit card statement out of the master production run simply to remove statement stuffers to be unreasonable.

In the bank’s view, including inserts in statements is a widespread practice that customers are informed of, and it is therefore reasonable for customers to expect such a practice. A banking association made the same point, and also noted that certain communications provided to customers by way of envelope inserts are mandated by the Bank Act disclosure requirements. It would therefore be a contravention of the Bank Act, were these not provided to customers.

The bank also stated that choosing to “piggyback” a generic, non-personalized, non-differentiated, identical message to every customer in the same envelope should not be considered a use of the customer’s personal information – a position that was supported by a marketing association.

In 2000, the bank sent its clients information about the new privacy legislation. Among other things, the disclosure portion of its notice indicated that the bank may tell customers about products or services through direct mail, telephone, or other means. It indicated that if the customer did not want this, he or she could contact the bank and withdraw consent. The notice, however, then went on to state that “this will not limit information which we may send to you with your account statement, or discussions with your service representative….” The notice continues by informing clients about why it shares their information and with whom, and that if they do not want their information used as described, they could contact the bank.

Our Office consulted with three other major banks regarding their policies on statement inserts. One of the banks did not offer customers the option of opting-out of receiving inserts with their statements. The other two, however, generally allow their clients to opt-out of receiving inserts, depending on the inserts’ content. The client can opt-out of receiving inserts about new products, but cannot opt-out of receiving inserts about related services, regulatory information, or information about branch closures. Both banks stated that a very small percentage of clients opt-out of having inserts in their bank statements.

Findings

Issued April 7, 2005

Application: Principle 4.3.3 states that an organization shall not, as a condition of the supply of a product or service, require an individual to consent to the collection, use, or disclosure of information beyond that required to fulfil the explicitly specified, and legitimate purposes; and Principle 4.3.8 provides that an individual may withdraw consent at any time, subject to legal or contractual restrictions and reasonable notice. The organization shall inform the individual of the implications of such withdrawal.

In making her determinations, the Assistant Privacy Commissioner deliberated as follows:

• She first referred to an earlier finding made by this Office in 2002, regarding consent and the disclosure of customer personal information for the purposes of secondary marketing. In this finding, the differences in views held by organizations and individuals when it comes to the term “secondary marketing” were noted. It was indicated that while the marketing itself may not be secondary in a marketer’s technical sense, to the individual customer, the bank’s marketing purposes were secondary to those for which he or she initially provided personal information – that is, for the purposes of determining credit worthiness, issuing a credit card, and administering an account.
• This case builds on the earlier finding in that the Assistant Commissioner applied the same line of reasoning regarding the disclosure of personal information for secondary marketing purposes to the use of personal information for secondary marketing purposes.
• The bank in this case contended that the inserts were not addressed personally to the client but rather were placed, without distinction, in the account statement addressed to the client. The Assistant Commissioner, however, noted that the customer’s personal information was still being used, and the goal of placing such inserts was nevertheless one of marketing and was secondary to the reasons for which the complainant initially gave his personal information, namely to receive a credit card.
• The bank informed the complainant through its agreement and disclosure statements that clients might receive marketing information with their account statements. While the bank believed it reasonable for customers to opt-out of secondary telephone or direct marketing, and offers customers the option to refuse such marketing, it did not believe it reasonable for customers to opt-out of statement inserts, many of which concern products or services that have nothing to do with the service for which the customer provided his or her personal information. As the Assistant Commissioner noted, marketing is marketing, whether it arrives in a bank statement or in the form of a telephone call. The bottom line is that, under the Personal Information Protection and Electronic Documents Act, individuals have the right to opt-out of secondary marketing.
• The Assistant Commissioner therefore determined that by not providing a means of withdrawing consent to secondary marketing, the bank was requiring the complainant to consent to a use of his personal information beyond that required to fulfil the purpose of servicing his credit card account, in contravention of Principles 4.3.3 and 4.3.8 of Schedule 1.

The Assistant Commissioner concluded that the complaint was well-founded.

Further Considerations

The Assistant Commissioner recommended that the bank implement a means by which customers might withdraw consent to secondary marketing inserts in bank statements and report back to her on its progress in this regard. She noted, however, that customers could not withdraw consent to information the bank was mandated to send under the Bank Act.

Resolution

After reviewing the Assistant Commissioner’s recommendations, the bank informed the Office that it has implemented a way for customers to opt out of receiving secondary marketing inserts. The Office is pleased with the outcome in this case.