Email marketing: IMPACT guide to the essentials

• Direct marketing by email is governed by a number of different Acts, regulations and codes of conduct.
• These laws and rules lack consistentency and there is a degree of overlap.
• For this reason it is best to stick to current "best practice" in your email marketing.
• The Data Protection Act is also relevant to email marketing.

The Privacy Regulations

• The Privacy & Electronic Communications Regulations (“Privacy Regulations”) came into force 2003.
• Designed to to increase consumer confidence in marketing communications by imposing a standard for marketing communications.
• Cover direct marketing, both solicited and unsolicited, by email, fax, telephone.

When do the Privacy Regulations apply?

• The Privacy Regulations apply to unsolicited (i.e. not requested) direct marketing messages by email, fax, or telephone. Email is defined in its widest sense, and so covers text messages, picture messages and audio messages.
• Certain rules apply only to direct marketing messages to individuals – i.e. not to messages sent to businesses. This is an unnecessary level of complexity in our view - good practice is to treat businesses the same as individuals.

Direct marketing emails

• You must not send unsolicited direct marketing emails to individuals unless you have first obtained their consent to you sending such emails. You must not allow others to do this either. There is one exception to this rule...
• The exception is that you can send a direct marketing email where:

1. You have obtained the recipient’s contact details as part of the sale or negotiations for the sale of goods/services to that person
2. The marketing email is only about those goods/services
3. The recipient was given a simple means of refusing marketing emails at the time his email address was collected, and is given one during each subsequent communication.

• This is often called the soft opt-in.

Emails you can't send

You must not send, or arrange for, marketing by email where:

1. The sender’s identity is concealed or disguised; or
2. You have not given the recipient a valid address to send an opt-out from future messages.
   (Guidance from the Information Commissioner indicates that a ‘valid address’ could be a valid email address or for a SMS message, a standard rate number to text, a PO Box number to write to or a website at which further opt-out details can be found.)

• The above rule applies to all marketing emails, whether or not:

1. The email is solicited or unsolicited
2. The recipient is an individual, a business, or any other kind of organisation.

Form and contents of marketing emails

• The Electronic Commerce Regulations (which we have previously discussed in our guide to selling to consumers online) deal with “commercial communications”. Marketing emails fall into this category, regardless of whether they are sent to a consumer or business. The Regulations state that these “commercial communications” must:

1. Be clearly identifiable as such
2. Clearly identify on whose behalf they are sent
3. Clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously
4. Clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously

• If you send an unsolicited “commercial communication” you must ensure that it is clearly identifiable as being such by the recipient.

Codes of practice affecting email marketing

There are also a number of marketing industry codes of conduct to be aware of:

• The CAP Code
  The Committee of Advertising Practice (CAP) is the body responsible for self-regulation of the UK advertising industry. The CAP Codes sets the standards for the advertising industry. There are 2 separate codes: broadcast and non-broadcast. In 2004, CAP dealt with over 10,000 complaints relating to non-broadcast advertising 
  Summary:

1. If CAP rules that a member has breached the CAP Code, the ruling will be published on the ASA’s website. If the activity that breached the ruling continues, the ASA can refer the matter to the Office of Fair Trading
2. Commercial communications should not be sent to those who haven’t been given the chance to object to receiving them
3. All commercial communications should be clearly identifiable as such when received
   Obtain consent to unsolicited commercial communications unless a “soft opt-in” applies (see the Direct Marketing Emails section above)
4. In commercial communications, give the recipient the ability to opt-out of receiving further communications
5. Do not send unsolicited commercial communications to someone who has objected to receiving them
6. Keep enough information on those who have objected to receiving commercial communications to ensure that no further such communications are sent

• Direct Marketing Association Code of Practice
  The Direct Marketing Association (DMA) is an independent, non-government organisation that represents and regulates the direct marketing industry. It also operates the Mail Preference Service and Fax Preference Service. The DMA created the Code of Conduct to self-regulate the direct marketing industry. The Code applies to members of the DMA. The DMA has established the Direct Marketing Authority to enforce the Code. The Authority’s role is to deal with complaints received about DMA members and investigate breaches of the Code. If it finds that a member has breached the Code, it can:

1. Make a public statement about the breach
2. Seek undertakings from the member that the breach won’t happen again
3. Suspend of terminate the member’s membership of the DMA
4. Ask the Office of Fair Trading to obtain an injunction stopping the member from repeating the activity. The DMA has also published best practice guidelines for email marketing.

• Summary:

1. All commercial communications should be clearly identifiable as such when received
2. Obtain consent to unsolicited commercial communications unless a “soft opt-in” applies (see above)
3. In commercial communications, give the recipient the ability to opt-out of receiving further communications
4. Do not send unsolicited commercial communications to someone who has objected to receiving them
5. Keep a “suppression list” of those who have objected to receiving commercial communications

What's best practice?
The Information Commissioner has issued a good practice note on marketing emails . It recommends:

• Use permission-based marketing as much as possible.
• When collecting details, provide a statement of use. Put this in an obvious place or make sure it has to be read before individuals submit their details.
• Clearly explain what you will use individuals’ details for. E.g. state why you might use their email address in the future.
• Do not pre-tick consent boxes.
• Provide a simple and quick way for customers to opt out of marketing emails at no cost other than that of sending the message.
• Promptly comply with opt-out requests from everyone, not just individuals.
• Implement a system to deal with complaints about unwanted marketing.
• When you receive an opt-out request, suppress the individual or company details rather than deleting them. This way you will have a record of who not to contact.

Resources

• Information Commissioner Good Practice Note on Electronic Marketing
• Information Commissioner page on the Privacy Regulations
• Information Commissioner Guidance on the Privacy Regulations: part 1
• Information Commissioner Guidance on the Privacy Regulations: part 2