Following on from ‘would your website stand up in a court of law’ I thought another area of e-business worthy of discussion is email marketing and the law.

As with any type of direct mailing, email marketing is strictly regulated to prevent the abuse or misappropriation of consumer data.

The transmission of Electronic Mail is regulated by the Privacy and Electronic Communications (EC Directive) Regulations 2003, which states that;

1. You cannot transmit, or instigate the transmission of, unsolicited marketing material by electronic mail to an individual subscriber unless they have previously notified you, the sender, that they consent, for the time being, to receiving such communications. There is an exception to this rule which has been widely referred to as the ‘soft opt in‘ (Regulation 22(2) refers).
2. You cannot transmit, or instigate the transmission of, any marketing by electronic mail (whether solicited or unsolicited) to any subscriber (whether corporate or individual) where:

• the identity of the sender has been disguised or concealed; or
• a valid address to which the recipient can send an opt-out request has not been provided. (Regulation 23 refers)

In summary the 2003 Regulation states that you can only carry out unsolicited electronic marketing if the person you’re targeting has given you their permission (opts in) or if there is a customer relationship in existence. An individual subscriber is defined as a living individual which includes sole traders and unincorporated partnerships, and are given much greater protection than the corporate subscriber.  Corporate subscribers are companies or individuals within companies; sending unsolicited emails to corporate subscribers is allowed.  The rationale for this being that the same safeguards imposed for a business to consumer relationship would impede a business to business relationship. No matter the recipient, corporate or individual, ecommerce regulations require that if your email is a commercial one it must be clearly identifiable as such.

Email marketing and individual subscriber

As the previous paragraphs states you cannot simply direct mail individual subscribers, you must obtain their prior consent to do so. The only exception to this rule is if there is an existing customer relationship between the business and the individual. Even still there are certain rules about how you contact them, firstly their email address must have been acquired through the course of a sale, secondly any further emails must relate to your business products or services, and at the time of the email being acquired the individual was given the opportunity to refuse their email address being used for direct mail purposes. As with all direct mail, including sending to corporate subscribers, the email must contain clear address details for the sender and must be given an option or means of removing themselves from the subscription list. Further to this, e-commerce regulations require you to make all commercial emails clearly identifiable as such, either in the header or the text of the email.

Obtaining mailing lists and contact details

The Data Protection Act 1998 is designed to regulate the capture and storage of personal data, and provide the individuals whose personal data is being capture with certain rights. If a business chooses to capture, purchase or store data, in this instance for the purpose of email marketing, then they must abide by the regulations outlined in the 1998 Act.
The key principles of the Data Protection Act 1998, relevant to email marketing, are:

• Data must only be used for the purpose of which it was collated
• The data must not be disclosed to other parties without the prior consent of the individual, this also includes reveals recipient details in emails.
• Individuals have a right of access to the information held about them
• Personal information must not be kept for longer than is necessary
• Adequate security, technical and organisational measures must be in place to protect personal information

Any business capturing visitor data on their website must provide appropriate warnings to the data provider and are legally bound to inform individuals of what the data will be used for.

In conclusion

You cannot send unsolicited marketing messages by email to individual subscribers unless you have their prior consent unless their information was collected in the course of a sale or if the recipient has expressed an interest in ’similar’ items and chose not to opt out when the address was originally collected.

When sending a commercial email ensure:

• that your company title and contact details are clearly displayed
• the email is identifiable as being a commercial email
• recipients have the option to unsubscribe or opt out of future correspondence
• individual recipient details are not disclosed within the mailing list

Get all this right then you’re halfway to creating an effective email marketing campaign, check out our guide to getting email marketing right or view our case studies on how we’ve helped clients get excellent results with email marketing.