Do you send marketing messages via text, voice, sound, or image over a public electronic communications network which can be stored in the network or in the recipient's terminal equipment until it is collected by the recipient?
Don't look at us; this is how the UK's Privacy and Electronic Communications Regulations (PECR) defines marketing email
Legal language. Big sigh.
As tedious as legal language is, it's vital that we email marketers understand what our responsibilities are. There is no way to avoid it, but we've made it a little easy for you. Use this rough guide to find your way around the regulations that govern email marketing in the United Kingdom.
Which law applies to you?
If you send out any type of direct marketing email, the PECR applies to you.
If, in the course of your email marketing, you collect personal information about your subscribers - like name, telephone number, address - you must also follow the rules of the Data Protection Act
THE PRIVACY AND ELECTRONIC COMMUNICATIONS REGULATIONS
The PECR's fundamental rules:
You can send unsolicited marketing email to someone -
Read more
Exceptions to the PECR
You can send emails without prior consent to -
e.g. admin@company.com
Soft opt-ins are people whose details you obtained in the course of a sale or negotiation. You can send marketing emails to soft opt-ins without prior consent if the emails relate to a similar product or service and the individual is given a simple way to unsubscribe from all such future emails.
Unsolicited and solicited communication
A solicited message is one that the subscriber has actively asked to be sent to him.
An unsolicited marketing message is one that the subscriber has not invited, but for the time being, does not object to receiving. E.g. an individual signs up to a competition online, and checks a box that says "send me regular updates about your product."
ALWAYS remember that if challenged, you must be able to prove that the subscriber has opted to receiving further info from you. Read more here
Opt-in and opt-out
A person is opted-in to receive your marketing email if he has consented to receive email communications from you. A person is opted out if he has objected to receiving marketing email from you. Please note that just because someone has not objected to receiving communications does not mean he has consented to receiving your marketing email. Read more about opt-in and consent here
Email addresses obtained in the course of a competition
If you have obtained email addresses and other personal data that people provided while entering a competition, you are allowed to use the data to email such subscribers provided you made it clear at the time of obtaining the information what you're going to use the information for. Read more
Information obtained from third parties
There is nothing in the PECR and DPA against using data obtained from third parties. But you need to make sure that the third party you are getting the data from has collected the data lawfully and, at the time of collection, made it clear how the data was going to be used. Read more.Viral Marketing / Forward to a friend
If you include a forward to a friend link in your marketing email, you must advise your subscribers to forward to only those people who they believe will be interested.
If you ask your subscribers for their friends' details you are assuming that the referred friends have consented to receive communications from you. You are liable for any such communications sent to the referred email addresses. Read more
THE DATA PROTECTION ACT
Here is what the DPA says:
You must have legitimate reasons for collecting personal data, and provide a clear privacy notice to individuals at the time of collecting information.You must be honest about how you plan to use the data. Processing the data for anything other than what you previously specified will be a violation of the Data Protection Act.You must not collect more information than necessary.You must not hold the information for longer than necessaryThe personal data must be kept up to dateThe data must be protected against unlawful processing, damage, destruction or loss.Read the ICO's guide to the Data Protection Act for full details.
THE COOKIE LAW
The cookie law says that cookies or similar devices must not be used unless the subscriber or user of a website has been provided with clear information about how his details will be stored and accessed, and unless the individual has given his consent.Once the individual gives his consent, it need not be obtained every time he visits the website. Read more.
There is nothing specific in the law about open tracking. The Direct Marketing Association (DMA) believes that open tracking is not covered by the cookie law. Read the DMA's summary on the Cookie law here. The DMA has reviewed the legislation and believes that open tracking is not covered by the cookie law. Read more here and here
EMAIL MARKETING GOOD PRACTICE GUIDE
The laws have been written to protect the interests of your subscribers. Certain parts are not specific and are open to interpretation. Here are a few good practices that every email marketer must follow:
When collecting personal details, explain clearly how the information will be usedDon't collect more information than necessary, and don't store it for longer than necessary, and don't use it for any purpose other than what was initially disclosed.Always obtain consentDo not have consent boxes already tickedProvide a quick and easy way to unsubscribeWhen you receive an unsubscribe request, process it promptlyWhere consent is implied, make sure you are satisfied that the user understands that cookies will be set.Please note that the information above does not constitute legal advice. Always speak to your legal counsel if you are unsure of your legal position.
Image courtesy of Surian Soosay
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