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Clampdown on email marketing

Nov 25 2003

Direct marketing via email will be subject to new legal restrictions from 11 December, when the Privacy and Electronic Communications Regulations 2003 come into force.

The new rules, which apply to individuals only, are aimed at obtaining consent/giving opt-outs in the case of certain types of electronic marketing, such as email and text messaging.

If your business carries out marketing via email, you will need to have permission to contact anyone to whom you send the material, and ensure that the permission was obtained using an ‘opt-in’ policy.

This means that anyone who receives marketing from you via email must have given their prior consent. The rules also apply to text messaging. There are also rules about the use and identity of cookies, as Beverley Flynn, senior associate solicitor at Stevens & Bolton Solicitors, explains.

‘You will need to ensure that individuals who visit your website are aware of the use of cookies or other locators on your website and update your privacy policy to make them aware. Always give individuals the right to opt out from the cookie.’

She believes that the regulations will make it harder for businesses to carry out e-commerce marketing.

‘The changes in law favour individuals, who will be more in control and it will make it harder for companies to use email marketing. However, it will be very hard to enforce the regulations, as legislation is still very piecemeal, but companies will be more accountable,’ concludes Flynn.

Flynn has provided the following tips to help businesses get to grips with the new regulations.

Obtain bought-in lists from reputable companies and appropriate warranties that the names have been legally obtained for the types of marketing you intend to use them for.

Before sending direct mail by post, fax, e-mail or using telemarketing, check if the individual has opted out using the opt-out preference scheme.

When creating your own database of contacts for direct e-marketing purposes, get the consent of the relevant individuals. Update your database regularly.

Obtain the prior consent of an individual to receive electronic direct marketing by e-fax, e-mail or SMS (known as “ opt-in”).

An opt-in is not always necessary if the direct e-marketing relates to your business’s own products or services, provided they are similar to those products or services originally purchased by the customer, and the electronic contact details were obtained by your business from the customer in the course of the sale or negotiation for these products or services. In these circumstances when obtaining the contact details, you should make the customer aware of how the details may be used in the future (eg for marketing purposes) and give the customer an opt-out on each occasion of the customer receiving the direct e-marketing.

If sending direct electronic marketing make clear that the communication is a marketing one, ensure that the recipient has the identity of your organisation and a valid address to send an opt-out to.

Remember, in the case of group companies, although the companies are within the same group, they are separate entities and if you intend to pass details between the group companies for direct e-marketing purposes, consent must be obtained.

(24/11/03)

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