Unwanted marketing texts from a take away / Flipdish

That's what I thought. I tried politely explaining it but he was having none of it. He was completely convinced by what Flipdish had told them that everything they were doing with the texting was legal.

I don't think that's right, especially now that I've read that in that link to the citizen's advice. Also, there are lots of times when I order something online and there is that box to tick if you want to opt out of marketing. I'm fairly sure that box wouldn't be there if it didn't have to be. The fact that you have to tick it to opt "out" and not "in" is another problem.

No, if you read that carefully, they can't just send to all exisiting customers. It says exactly what I was pointing out above, that customers may not have to explicitly opt in but that they do need to be given the option to opt out upfront.

That page you linked specifically says the customer needs to be given the option to opt out from the very beginning, when they first give their details. Point no. 3 from the link you gave:

"The customer must be clearly and distinctly given the opportunity to
object to the use of their details at the time those details are
collected, as well as each time the organisation sends an electronic
marketing message to the customer"

Like I said, websites usually have something in small print when you're checking out saying that they may contact you with special offers etc and if you don't want to receive them, you can tick the box. That's sneaky enough as it is by making opting in the default but that is them making use of that rule that you linked.

In this case however, that box did not exist at all and there was no mention of potential sms marketing when placing the order. I think it's quite clear cut that that's not allowed.

Thanks for that, yes, that's the same information that was linked above by watchclocker. My point is that if you read

"c) the customer must be clearly and distinctly given the opportunity to object to the use of their details at the time those details are collected, as well as each time the organisation sends an electronic marketing message to the customer",

you can see that they don't just have to give you opt out options when they send the marketing messages but that they explicitly have to give you an option to opt out of any potential future marketing messages at the time you first give them your contact details, which would be when placing the order originally.

So not only are they wrong for not providing an opt out option in the marketing texts, but they were not allowed to send marketing messages using that "soft opt in" rule in the first place because they didn't fulfil condition c above.

I just checked there in case there was something I missed at their checkout but there isn't. It says that by using their website you agree to the terms and conditions but it doesn't say that that will include agreeing to marketing texts and it doesn't give any option to opt out of anything. You need to actually click in to the terms and conditions and read through them, where it does mention that they may send you marketing texts but again, there is no information there about your right to opt out of them or how to do that.

Hopefully you're right and they will be told to change their methods. I'm just shocked that they were so bull headed about insisting they weren't doing anything wrong. I mean, I wanted my own situation sorted but I also wanted to give them a friendly heads up that they were breaking the law but they didn't want to know.

Interesting, yours has an opt out link at the end of the text. Mine didn't have that and also they came from a normal mobile number. Do you remember if you had the option of a box to tick to opt out of marketing when you ordered the food?

Well I actually got an answer from the DPC!

The take away admitted that my consent to marketing was activated when I phoned in my first order. That explains why I never got the pop up when I used the website at a later date because I was already opted in (without my knowledge). I'm glad that was clarified because I wondered if I was going mad.

The question is, why are the take aways able to add people's consent over the phone without asking them? Surely that's something the Flipdish system shouldn't allow? Are they soft-opting in everyone who rings in an order by default and relying on staff to ask if people want to be opted out but the staff don't bother asking? Or is it the take away staff just taking the liberty of manually opting in anyone who rings? Either way, it shouldn't be something that's possible.

I fear this is a case where both businesses will pass the blame off to each other. Clearly the take away were very much in the wrong here but the Flipdish system should be robust enough to not allow this to happen.

As for the lack of opt out options in the texts, they said they usually have them but it was a mistake in this case! They said that when I rang up to complain they told me over the phone how to opt out by text but that's not even true. When I rang they argued with me for 10 minutes and then finally agreed to opt me out themselves. They were initially saying the only way I could do it myself was by downloading their app, which I obviously wasn't going to do.

I did reply STOP after the third text but that was because I had looked up online and read that that sometimes works for people for various spam texts so I tried it. They're trying to claim that they told me how to do that, which they didn't. Anyway, even if that were true it wouldn't be good enough because it should be written in the text.

Anyway, the DPC only seemed to be concerned about whether or not I'm still getting the texts. I told them I'm not but that I'd like to know what they plan to do to make sure the business don't keep doing this to future customers. We'll see if they come back to me about that.