Prior consent does not mean opt-in

Email marketing

The UK's so-called anti-spam law, the Privacy and Electronic Communications Regulations, came into effect in December 2003. Many have said that this means changing the standard for consumer e-mail marketing in the UK from opt-out to opt-in - but that's not strictly true.

Confusion has arisen because legally there is a difference between the term "consent", which is what the law actually requires, and "opt-in," which is what everyone seems to think the law requires. In fact, the rules are not as restrictive as some have suggested.

Even consent is not always necessary. If promoting similar products to existing customers, or those consumers whose contact details the marketer obtained when selling or negotiating a sale, consent is not needed provided an opt-out is given on collection of the e-mail addresses and an unsubscribe option is included with each e-mail sent.

But if this does not apply - i.e. if the marketer is cold-calling by e-mail - the Regulation that causes concern says that consent is needed from the recipient before sending unsolicited e-mail marketing to individual subscribers (which do not include corporate subscribers).

The Information Commissioner, responsible for enforcing the Regulations, has issued guidance on this which confirms that ticking a box is not the only way to get consent. Consent can be obtained, for example, by clicking an icon, sending an e-mail or subscribing to a service. So a business can build a database of e-mail subscribers and legitimately market its products to them without needing to provide an opt-in box, provided it gets its wording correct at the point of subscription.

The key points are that there must be some form of positive action by the individual, they must understand that they are consenting and they must understand what they are consenting to. A clear and upfront privacy statement that says something like "if you sign up for this service you will be consenting to receiving e-mail marketing from us unless you tick the opt-out box provided" may, according to the Commissioner, be sufficient to gain consent. That is not much different to what many responsible e-marketers have done in the past.

The guidance also makes clear that there is nothing that expressly rules out the provision of consent via a third party. So those that thought either that they could no longer buy or sell lists or that this would no longer be worth it because no-one would opt-in may be relieved to discover that an opt-out box can still be used together with suitable wording - although this will depend on how the information is collected from the individual.

Commercially, many organisations may decide to go down the clear opt-in route and this certainly seems to be what consumers are expecting.

E-mail marketing that consumers do not want is often seen as spam, even if it is not. However, for those organisations that have been concerned about their marketing databases dwindling, there may be light at the end of the tunnel.

© Copyright 2004 OUT-LAW.COM

Louise Townsend is a specialist in data protection law with Masons, the firm behind OUT-LAW.COM.

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