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Email marketing: prior consent does not mean opt-in

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Comment Know the law before you accuse “34 per cent of top UK companies” of breaking it. Recent research, reported by the BBC, FT and others, suggested that our corporate tycoons are flouting the law on email marketing. But the data management company behind the research got the law wrong.

The company's press release said the EU Directive on Privacy and Electronic Communications "demands that companies only send unsolicited messages via email to non-customers if they have actively opted-in to receiving them".

Not exactly. The relevant bit of the directive talks about the need for prior consent, not opt-in. There is a difference.

Most people think of opt-in as ticking a box, but that is just one way of getting prior consent.

The press release continued: "The legislation makes it crystal clear that simply offering someone the opportunity to opt-out of receiving unsolicited emails (or indeed pre-ticking an opt-in box) does not comply with the directive."

No it doesn't. The directive says no such thing. Even prior consent is not always necessary for email marketing. If you're emailing existing customers to promote similar products to those they bought before, and these are people whose contact details you obtained when selling or negotiating a sale, prior consent is not needed - provided you identify your company, give an opt-out on collection of the email address and include an unsubscribe option with each email sent.

If cold-calling by email, prior consent is needed from the recipient before sending unsolicited email marketing to individuals (unless emailing them at a company address), but you can get prior consent in a number of ways - as the Information Commissioner explains in his guidance (see page 5 of this 44-page/817KB PDF). One of them is an opt-in box, but it's not the only way.

Another legitimate approach is to say: "By signing up for our newsletter/buying this product/entering this prize draw, you consent to receiving our email marketing. If you don't want it, check this box."

So an opt-out box is still allowed provided you also make it clear when you collect the email address that it may be used for marketing and draft your data protection notice as a consent statement. Consent can be obtained by clicking a button, sending an email or subscribing to a service. You just need some form of positive action by the individual, they must understand that they are consenting and they must understand to what they are consenting.

Opt-in boxes are my own preference when I visit other websites and it's our approach on OUT-LAW.COM; they're just not compulsory. Our site used to have an opt-out box. We switched, but not because of the law. We switched because we learned about usability, because we learned that users scan web pages instead of reading them and, however obvious we make an opt-out box, some people won't see it.

So I do agree with the recommendation about switching to opt-in, and the researchers are not alone in misunderstanding this law. But how many "top UK companies" break the email marketing law? We still don't know.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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