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Getting the message - email marketing & the law

Lawyer Vaughan Jones from the Business Law team at Burnetts Solicitors explain the regulations around email marketing. 

Email marketing is a heavily regulated area with regulatory legislation including the Data Protection Act 1998.  This Act and in particular the first Data Protection principle, that personal information must be processed fairly, is highly relevant when considering email marketing.  

The effect of this principle is that when collecting data for the purposes of email marketing, businesses must provide data subjects with:

•    details of the identity of the legal person running the business, such as an individual sole trader or company;
•    the purpose or purposes for which the data is to be processed; and 
•    any further information which is necessary to enable processing to be fair.  

In addition, in order to ensure that processing is fair, the data subject must give their consent to the processing.  Consent can be given by the data subject signifying their agreement to the businesses using their details for email marketing.  Significantly a non-response or failure to respond does not equate to consent however if the data subject has failed to tick a box opting out of the email campaign then this may be enough to signify consent.

Data subjects have an absolute right to object to their data being used for marketing purposes.  This can be expressed at any time and the business must then stop using individuals details for email marketing even if the data subject has previously consented to receiving marketing material.  However this does not necessarily mean that the individuals details must be removed from the businesses database, indeed it may be advisable to simply “suppress” their details to ensure that emails are no longer sent to them but to retain their email addresses so that they can be cross checked against any new details acquired to ensure that the business does not subsequently recommence email marketing without the individuals consent.

Another relevant piece of legislation is the Privacy & Electronic Communications Regulations 2003, which operates on an opt-in basis, i.e. an individual must specifically agree to receive marketing via email.

Opt-ins create an extremely high barrier for email marketing and so the Regulations contain an exception known as the “soft opt-in”.  This states that a business may send marketing material via email to people whose contact details have been obtained by the business in the course of sale or negotiations for a sale of a product or service to that person.  In such cases, the business may send details of similar products to the individual concerned.  

Where a soft opt-in is used, individuals need to be given a simple, free way of refusing marketing contact when they provide their email details, such as opt-out tick-box on order forms or websites. In addition on every email sent for marketing purposes, businesses should provide a method of opting out of further emails.  It is good practice to have a “click through” opt-out opportunity which is normally a link at the bottom of the email which enables the recipient to unsubscribe easily.

When considering marketing via email it is therefore essential to ensure that you are open and frank about the use of personal data as it is being collected, ensure that you have consent to use an individual’s data and always give individuals an opportunity to opt-out or unsubscribe.

5 Top Tips

•    Tell customers who you are and that you will, unless they opt-out, use their details for marketing purposes on order forms, requests for quotes or online stores
•    Always provide an opt-out tick box when collecting data
•    Always provide an “unsubscribe” option at the bottom of marketing emails
•    Look out for requests from data subjects to stop processing data, or unsubscribe notifications and action them quickly
•    Don’t try and manage email marketing through Hotmail or Outlook. Use purpose-built email marketing software, much of which is free to use, (e.g. mailchimp) to ensure you can properly manage unsubscribes

About the author

Vaughan Jones profile photo

Vaughan Jones

Vaughan Jones is Partnership Chair and a specialist in Corporate Law.

Published: Thursday 31st October 2013
Categorised: Corporate Law

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