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Email Marketing Law The Law - summary The Information Commissioners Guidance to the Act states that the rules for electronic mail also apply to SMS/picture/video marketing communication, as well as answerphone messages left by marketers making marketing calls that would otherwise be 'live'. Who does it apply to? The regulations apply not only to sending marketing mail to individual consumers but also to sole traders, partnerships, or their employees. Many businesses fall under these categories - for example, many estate agencies or architects are partnerships. This Act does not apply to sending direct marketing mail B2B (unless they are a sole trader or partnership), but you must ensure that you provide these subscribers with an unsubscribe option, disclose your identity and honour any unsubscribe requests. If the recipient of your direct mail is an existing customer, you may continue to send them direct marketing messages providing their details were obtained in the course of a sale or negotiations for a sale, and the subject is restricted to similar products or services as the sale. In the course of a sale or negotiations for a sale'? This just means that if a person 'actively expressed an interest' in purchasing your products/services and did not opt out of receiving further marketing of that product or service, or similar products or services, at the time; then 'soft opt-in' should apply and you should be able to continue to send them communications on an unsubscribe basis. So what should I do? Firstly, you should make sure that you are offering an 'opt-in' rather than an 'opt-out' subscription; and providing details about what it is that people are subscribing to: what kind of communication they will receive and what you will do with their information. If you are going to share the customer's details with any third parties, you must ensure that you state this at the time, and ensure that the customer specifically opts in to receive communication from those (named) third parties as well. Be doubly certain Consider the use of a 'double opt-in' subscription to your digital marketing list. Once people have signed up, send them out an email asking them to confirm their wish to subscribe.Clearly state that if you don't hear back from them, they wont get any more communication from you. This prevents the risk of people who have been accidentally (or maliciously) subscribed to your list receiving what they would perceive as spam from you. Ensure that you keep all subscribe requests and double opt-in emails. Say hello and goodbye properly Make sure that your company name appears in the 'from' box of the communication and you provide a working unsubscribe option. As the law does not make it clear whether this should be in the form of an email or a postal address, it is advised to provide both (or an SMS number if applicable); and you must ensure that it's free for users to unsubscribe. Ensure that when users unsubscribe, you keep their details suppressed rather than deleting them - keeping them on record as not wanting marketing communications, rather than running the risk of sending them more marketing mail in the future by accident. Don't get mistaken for junk Be aware that many people now use 'spam filters' - in fact, some email providers set them as the default option. The implication of this for your solicited marketing emails is that you could run the risk of being relegated to the junk mail folder if your email contains too many 'spam trigger' keywords. (These include words such as 'free', 'discount', 'special' etc.) If you think your email contains too many such keywords, you could test it out by setting up a free mail account with someone like yahoo and sending it to that address first. Can I still use my old list? The Information Commissioner has this to say about the use of mailing lists that were compiled before 11th December 2003: "for the time being, we take the view that where mailing lists were compiled in accordance with privacy legislation enforced before 11 December 2003 and have been used recently, you can continue to use them unless the intended recipient has already opted out". Therefore, you must make sure that the list has been recently used, and that any opt-out requests from people on the lists have been, and will continue, to be honoured. However, if you are in any doubt as to the legitimacy of how that information was collected, it would be wise to send out an email to all your subscribers asking them to re-subscribe. What about buying marketing lists? The Information Commissioner states that 'some latitude' will be exercised with regard to third party mailing lists drawn up before 11 December 2003. However, this comes with the caveat that marketers will need to seek assurance from the list supplier as to the means that the details were collected, the disclosures given at the time of collection, and the precise details of the subject matter that the individual opted into (or out of). The legal responsibility does lie with you to check that consent of all subscribers on the list has been correctly obtained. You must make sure of this before buying the list, and should build indemnities into your contract for the purchase of the list. If you are buying a list now, be aware of the date it was compiled. Lists drawn up in 2003 should have been compiled in the knowledge that this law was on its way, but lists drawn up before 2003 will be much more questionable. And another thing? If you have different email lists for different subjects within your company, don't be tempted to mix them to gain a broader coverage. Be aware that if you trade under different brand names and a user subscribes to receive mail from one of those names, any mail that you as the company send from another of the brands will be unsolicited. However, under the Information Commissioners Guidance to the Act, if a user unsubscribes from a list for one of your brands, they opt out of receiving mail from any of your brands unless they specifically state that they only want to opt out of mail from that particular brand. In conclusion Email marketing can a great way for many companies to promote their services and keep their customers informed. Providing the subscribers to your list have opted in properly and you ensure you comply with the rules; your digital direct marketing can continue to be a useful and welcomed tool.
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