Email Marketing Law Briefing
Jack Marketing Solutions is a strong opponent of spam in all its forms. Business doesn't deserve this harassment, so we work hard with you to ensure that your messages get to the people they are meant to. Email marketing law is designed to protect businesses and individuals form this.
We understand spam filters, and produce detailed bounce reports showing where email messages get to. We plan your campaign carefully, identifying the correct target audience, and may still advise you walk away after that, if the medium is incompatible with the audience.
We help create flexible, impactful messages using all the latest programming techniques, whether it is to provide an e-Newsletter, a product campaign or a reactive response.
Do you know the email marketing law?
Do you know what you can and can't do with emails?
- You can send as many emails as you want to someone who has actively consented to receiving your messages (the opt-in)
- You can send emails to customers and former customers if it relevant to a product or service they have purchased, or about to purchase, or when responding to the customer
- You can send information to customers with whom you have an ongoing relationship with (a subscriber, etc.) or to inform customers of bugs or upgrades
- If the customer has opted in, you do not need to check any third party lists
- The Data Protection Act (DPA) does not apply to communication between companies, but business people are also consumers, so it is best to treat them in the same way
- Do not send advertising emails with false or misleading headers or subject lines
- Do not use false or inaccurate routing information - the "From" and "To" must be accurate and identify the sender. Make the 'From' a person - it makes it more personal
- Do not promote fraudulent schemes
- Do not send emails to list that you do not know the origins of, or that you are concerned about
- Do not send emails to addresses mechanically 'harvested' – no-one has opted in there
- Do not send advertising to anyone who has asked you not to e-mail them, in other words ‘opted out’ (and stop immediately if they do ask)
Are all unsolicited marketing emails illegal?
The simple answer is 'No'. Emails sent to corporate (business) subscribers that contain no personal information (e.g. ) are not specifically regulated under English law - there are however some restrictions to this. In terms of consumer campiagns, the general rule of thumb is that unsolicited emails ARE illegal.
"Corporate subscribers" in this context includes limited companies, PLCs and LLPs; but it does not include sole traders or general partnerships. It is, of course, not always obvious what format every company is, but given that there are differences, you cannot assume every corporate subscriber/recipient is part of a limited liability organisation.
In all other cases, unsolicited emails sent for direct marketing purposes will be illegal unless the recipient has expressly consented to receive the communication.
There is general confusion about what kind of consent is required for sending marketing emails and to whom.
The Data Protection Act 1998 states that opt-out (or similar) consent is generally thought to be sufficient in the case of marketing emails involving non-sensitive personal data. However, express or opt-in consent would be required for any direct marketing communications which involve the processing of sensitive personal data, such as data relating to ethnicity, politics or medical conditions. The line between the two is, however, blurred, as customers will define 'personally sensitive' differently.
Opt-in or equivalent consent is required under the Privacy Regulations for marketing emails sent to individual subscribers, unless the soft opt-in provisions apply. (N.B. the Privacy Regulations do not use the terms "opt-in" and "opt-out".)
Opt-outs, opt-ins and soft opt-ins are three different ways of obtaining consent to send marketing emails, but what do they mean?
Opt-out: this is where the email recipient has been given the opportunity to opt-out from receiving the emails, and has not done so (e.g. by not ticking or unticking a box in a form) at the point at which the contact information was submitted.
Opt-in: this is where the email recipient has specifically indicated a desire to receive the emails at the point at which the contact information was submitted (e.g. by ticking a box on a form).
Soft Opt-in: The grey area is a special type of consent under the Privacy Regulations called the 'soft opt-in'. This applies where:
- an email address was obtained in the course of the sale or negotiations for the sale of a product or service to that recipient
- the direct marketing is in respect of similar products and services the customer has already bought, consumed or enquired about, and
- the recipient was given the opportunity to 'opt out' when the details were collected and with subsequent communication.
Information to be provided in all marketing emails
Regulation 23 of the Privacy Regulations states:
"A person shall neither transmit, nor instigate the transmission of, a communication for the purposes of direct marketing by means of electronic mail - (a) where the identity of the person on whose behalf the communication has been sent has been disguised or concealed; (b) where a valid address to which the recipient of the communication may send a request that such communications cease has not been provided; (c) where that electronic mail would contravene regulation 7 of the Electronic Commerce (EC Directive) Regulations 2002(1); or (d) where that electronic mail encourages recipients to visit websites which contravene that regulation."
Regulation 7 of the Electronic Commerce Regulations states:
"A service provider shall ensure that any commercial communication provided by him and which constitutes or forms part of an information society service shall— (a) be clearly identifiable as a commercial communication; (b) clearly identify the person on whose behalf the commercial communication is made; (c) clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously; and (d) clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously."
In addition to the communications legislation, the Companies Act requires all business emails sent by a corporation to include the following information:
- Company Name
- Company Registration Number
- Place of Registration
- Registered Office Address
The Information Commissioner has stated that, notwithstanding the legal requirements, good practice requires that marketers follow the guidelines.
- Focus on an opt-in-based marketing policy as much as possible
- Provide a statement of use when you collect details, and link to it whenever possible
- Make sure you clearly explain what individuals' details will be used for
- Do not pre-tick the consent boxes (please note, you can give customer's an incentive to opt-in, but do not use duress)
- Provide a simple and quick method for customers to opt-out of marketing messages at no cost other than that of sending the message - this should be an immediate action
- Any opt-out requests from everyone, not just those from individuals, should be dealt with promptly and stop (wherever possible) further emails being sent
- Have a system in place to deal with complaints about unwanted marketing
- When you receive an opt-out request, suppress the individual or company details rather than deleting them, and record the date of the supression/opt-out (This way you will have a record of who not to contact)
The 2002 EU Directive on Privacy and Telecommunications gives everyone in EU countries the right to seek legal damages against the senders of unwanted email, fax, or text messages. We can help you manage your campaigns to avoid being subject to these claims.
For more information and guidance, please contact Jack Marketing Solutions for information.
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