Tech Law  »  Email Marketing

  

Introduction

Many businesses and organisations use new and innovative methods to communicate with their customers or potential customers. These include (but certainly are not limited to):

• Social Networking;


• Blogging


• Micro-Blogging (e.g. Twitter)


• Online / Electronic Newsletters


• Email Marketing

This Auxilia deals primarily with the issues surrounding direct and indirect email marketing, and explains what email marketing actually is compared with providing a service or product by email, and also gives a few pointers to the do's and the don'ts in email marketing.

SPAM, SPAM, SPAM, SPAM, SPAM... or genuine email update?

Before we look at how you should structure and set out your email marketing, we should first decide what sort of email marketing it is. The reason for this is because "unsolicited email marketing", known by its more common name of "spam", is not illegal, and so you should avoid sending it at all costs.

What causes some confusion is what people consider “spam” to actually be. Lots of people think that spam is simply emails that you don’t really want to receive, but this is not the correct and accurate definition. In order to quality for the title of ‘Spam’ emails, they must be “unsolicited”. This means that the recipient did not expressly or impliedly ask to be sent the emails. This can mean that, in the course of doing business with a company, they did not perhaps tick a box to say that they did NOT want to be contacted by that company about new offers or services. The following would therefore constitute “solicited”, or legally acceptable email marketing:

• Emails to customers who have consent / signed up to be on a mailing-list;


• Emails to customers who did not ask to be removed from a mailing list;


• Emails to existing customers of the firm / organisation.

The contrary is therefore also true, that any emails sent where consent has NOT been given, either expressly by entering their names into a box, or  impliedly, by ticking a box where they can ‘OPT-OUT’ of a mailing list, would generally be considered as ‘spam’ or ‘unsolicited email communication’. The advice here is simple – do not send to them!

Emails from Third-Party Companies

You may have seen boxes on some websites where you are invited to ‘OPT-IN’ or ‘OPT-OUT’ of communication by what they may term “carefully selected third-parties”. This is generally OK as long as those third-parties have a clear, identifiable agreement with the primary data collector, and the primary data collector can tell users who they share their data with. More information can be found in the Auxilia, “Sharing data with others”.

What should emails include?

Genuine, solicited emails must include the following information:

1. Details of who has sent it (i.e. company name, number etc.)


2. Contact details for that sender (i.e. registered office, email reply address, telephone number etc.)


3. Short explanation of why they have received the email (i.e. “You are currently subscribed to receive information about...”)


4. Details of how to unsubscribe from future emails.

For the last of these, there has been much written about how this should be done. However, the truth is that you do not need to have an automated or electronic subscribe / unsubscribe system in order to comply with the law. Whilst an automated system may be preferable to the sender and intended recipient, providing a system whereby the recipient emails the sender to a specified address (e.g. unsubscribe@it-legal.co.uk) would be acceptable, presuming that the sender then DELETES the address from the mailing list, or makes a permanent record that the recipient is not to be included on any future mailing list.

Recipients should be aware, however, that there are a number of scams common to the UK where unsolicited or spam email is sent out which requests the user to reply or send to an alternative address to be removed from the list, and by sending to this address the recipient’s email address is then added to a ‘hotlist’ of active email accounts, which may then be sold on to other spammers and result in a huge increase of spam email to that address. It is therefore strongly recommended to have a more transparent automated system to remove recipients from a mailing list, and of course to ensure that all the relevant information at points 1-3 above are covered.

Checklist

Question 1

Do you use emails to communicate to customers / potential customers?

YES – Go to question 2

NO – You are compliant!

Question 2

Are your recipients existing clients / customers of your business / organisation?

YES – Go to question 3

NO – Go to question 2.1

Question 2.1

Did you purchase / acquire the list of recipients from another company?

YES – You may well not be compliant – you should conduct a review of compliance and speak with a solicitor if necessary.

NO – Go to question 2.2

Question 2.2

Do you have a data-share agreement with the business / organisation that shared the data with you?

YES – Go to question 2.3

NO – You are NOT compliant

Question 2.3

Has that business / organisation got consent from recipients to have their data shared with you?

YES – Go to question 4

NO – You are NOT compliant

Question 3

Did your customers agree / request to sign up to your mailing list?

YES – Go to question 4

NO – Go to question 3.1

Question 3.1

Did you give your customers the ability to ‘opt-out’ of your mailing list WHEN they became a customer / registered with you?

YES – Go to question 4

NO – You are NOT compliant

QUESTION 4

Do your emails include information about who is sending them (i.e. you); your contact details; an explanation of why they receive the emails and details of how to unsubscribe from the mailing list?

YES – You are most likely COMPLIANT

NO – You are NOT compliant

This is a complex area to get right, and getting it wrong can cause real issues for your business / organisation, and even in some cases a fine or other penalties. Please send me an email if you want any further information.