Legislation to consider when embarking on marketing via email

Although the legislation surrounding email marketing came into force some time ago, many marketers are still unclear as to what they can and can’t do when it comes to marketing via email in the UK. If you are about to embark on an email marketing project for the first time, or just want to check the legal status of your campaigns, the guide below should help. 

EU Directive on email marketing - Article 13, Unsolicited Communications
This legislation came into force in the UK in December 2003 and covered email, telephone and fax communications. This section will cover the provisions relevant to email marketing only. 

So what does the legislation really mean for marketers? 

B2B Marketing 

The good news for you if you are selling and marketing to other businesses is that you can continue to work on an ‘opt out’ basis. This means that you can contact those names you have on your database without needing to gain their permission first. 

The legislation allows the member states to choose whether or not to include business emails in the ‘opt in’ rule. The UK government decided that common sense dictates that you shouldn’t need advance permission to contact a business. It also felt that corporations were well placed to protect their systems from unwanted emails. 

‘Corporate subscribers’ are defined in the act as corporate bodies such as a limited company or limited liability partnerships. It also includes schools, government departments and agencies, hospitals and other public bodies. An example would be john [dot] smith [at] company [dot] com . 

So when marketing to ‘corporate subscribers’ you simply need to
1. make sure you do not conceal your identity in your emails
2. Provide a free of charge ability to opt out.
 

B2C Marketing 

The main aim of the legislation is to protect ‘individual subscribers’ – this means a residential subscriber, a sole trader for non-limited liability partnership. An example would be fred [dot] smith [at] hotmail [dot] com). Since the act, all marketing to individual subscribers must be done with their express permission (‘opt in’). Therefore if you want to market to personal email addresses the recipients must have opted in to receiving your emails. 

You must also comply with points 1 and 2 above. The exception – the ‘soft opt in’ rule. There is some good news for marketers who want to email consumers but who haven’t gained their prior permission. If you have a previous relationship with the consumer and gathered the user’s details in the course of a sale, or negotiations for a sale of a product or service, you can email them on an ‘opt out’ basis. This is the ‘soft opt-in’ rule. 

Your emails should be marketing and selling similar products and services. So if a holiday rentals company gathered someone’s email in the course of a negotiation about a holiday villa, the reader should expect them to send them an email about similar holiday rentals but not, for example about mortgages.
 

Good Practice Recommendations 

The Information Commissioner (www.ico.gov.uk) offers the following Good Practice

Recommendations to stay within the law and ensure that your emails are welcome in people’s inboxes.
• Try to go for permission-based marketing as much as possible. This way you are only contacting customers who want you to contact them.
• Provide a statement of use when you collect details. Put this in an obvious place or make sure it has to be read before individuals submit their details.
• Make sure you clearly explain what individuals’ details will be used for. For example, explain to individuals why you might use their email address in the future.
• Do not have consent boxes already ticked.
• Provide a simple and quick method for customers to opt out of marketing messages at no cost other than that of sending the message.
• Promptly comply with opt-out requests from everyone, not just those from individuals.
• 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. This way you will have a record of who not to contact. 

The need for an effective unsubscribe process

We would add to the above the need for an effective unsubscribe mechanism. Many companies provide an unsubscribe option in their emails but then fail to manage the removal process properly. Nothing angers recipients more than their unsubscribe request being frequently ignored. Our advice would be to ensure that you put the correct procedures in place to make sure that people are never mailed again after an unsubscribe. 
 

In addition, we would suggest that you include the recipient’s email address in the email – e.g. click here to remove a [dot] b [at] acme [dot] co [dot] uk . Many recipients have multiple email accounts, or have former colleagues’ emails directed to their inbox. Unless you tell them which email you have on your list, they could try to unsubscribe many times and yet still receive your emails. 

Conclusion – Has the act been effective so far?

The act should have encouraged UK marketers to use email more responsibly and effectively by forcing them to market to those with a potential interest in their offering. The legislation protects consumers whose email inboxes are most vulnerable whilst offering a common sense approach to business to business marketing by allowing contact between companies without the need for prior consent. 

Whether it has reduced the volume of spam in our inboxes is debatable. As a lot of it comes from outside the EU, and is from unidentifiable sources, it will be tough for the legislation to control it.

If you would like further information, please email sales [at] extravision [dot] com or call 0161 817 2929