Email marketing in the UK - what is legal and what is best practice?

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I recently gave a presentation about email marketing to an audience of business owners and managers. There wasn’t enough time to cover all attendees’ questions regarding the legalities so hopefully I set the record straight in this article.

I have a simple definition for spam (unsolicited email): it is any email message sent to the recipient without their explicit consent to receive email communications on that subject from the sender.

But what does the law say? The EU directive on Privacy and Electronic Communications Regulations came into UK law on December 2003, and covers the sending of email communications in comprehensive detail. Put simply it states that you must not contact individuals without their prior consent unless you have obtained their details in the course of a sale or negotiations of a sale. Following this you may also contact them about your own similar products or services. If you buy or rent an email list from a third party you can use it only if the intended recipients have actively consented to receiving unsolicited messages by email from third parties.

It is not illegal to send unsolicited email messages about your business products or services to the employees of a Limited company or Limited Liability Partnership but you cannot send these messages to sole traders or unincorporated partnerships! However, individual employees of limited companies have a right under the Data Protection Act 1998 to require you to stop using their address for marketing, and it serves little purpose to send unsolicited marketing messages to those who do not want to receive them. In all email communications you must not conceal or falsify the identity of the sender and you must provide contact details and a means for recipients to opt out of receiving further marketing messages.

Irrespective of the law, we think it makes good business sense to only market by email to contacts who will be responsive to your message, otherwise you are wasting your time and money. This is the definition of true permission based email marketing. So if we use permission as the basis of our email marketing rather than what is permitted by law who is it acceptable or unacceptable to contact? Here is some guidance:

Acceptable to contact by email

  • Someone who has signed up for our email communications using a subscription form on your website. If the form is a general enquiry form with a checkbox to sign up for email communications then this checkbox must not be checked by default. The user must choose to opt-in rather than remember to opt-out.
  • Someone who completes a paper form opting in to receive email communications. If you are running a prize draw or competition and collecting email addresses you must make it clear that you intend to use their email address for marketing purposes.
  • Someone who gives you their business card and agrees to receive email communications from you. A good tip is to ask them to write “Yes, newsletter” on their business card so there is no disputing their permission was granted.
  • Any existing customer who has bought similar products or services from you in the last two years. The use of the word ‘similar’ means products or services which you could reasonably expect them to have an interest in purchasing.

Unacceptable to contact by email

  • Email addresses copied from websites, business cards or any other source without the recipient’s permission.
  • An email list bought or rented from a third party. While it is not illegal to buy or use such as list the recipients are unlikely to consider your email message as anything other than spam, and this may damage both your wallet and reputation. How many people do you know who willingly tick boxes to receive email communications from ‘carefully selected’ third parties?
  • Anyone who you haven’t contacted in over two years, as they are unlikely to remember they gave you their permission.
  • Anyone who has not explicitly given you their permission.
  • Sending emails where the identity of the sender is concealed or falsified.
  • Not providing a means for recipients to opt-out of receiving future email communications from you.

We hope this article has gone some way to clarify what is legal, what is best practice and the difference between the two. The further information please refer to the following from the Information Commissioner’s Office website:

Privacy and Electronic Communications Regulations guide to email

This article is now over two years old. In the last few months alone it has been read by marketers at Credit Suisse, Dotmailer, Ebay, The Economist, Elton John, Endemol, Experian, Honda, Interflora, McCann Erickson, Nationwide Building Society, NHS, Polo Ralph Lauren, Royal Bank of Canada, Sharp, Western Union, WPP, among others. Want to know how we know? Contact us.

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