Feeds

Check mate

Email marketing: prior consent does not mean opt-in

  • alert
  • submit to reddit

Top three mobile application threats

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.

The Essential Guide to IT Transformation

More from The Register

next story
BBC goes offline in MASSIVE COCKUP: Stephen Fry partly muzzled
Auntie tight-lipped as major outage rolls on
Nadella: Apps must run on ALL WINDOWS – PCs, slabs and mobes
Phone egg, meet desktop chicken - your mother
ITC: Seagate and LSI can infringe Realtek patents because Realtek isn't in the US
Land of the (get off scot) free, when it's a foreign owner
HP, Microsoft prove it again: Big Business doesn't create jobs
SMEs get lip service - what they need is dinner at the Club
Samsung threatens to cut ties with supplier over child labour allegations
Vows to uphold 'zero tolerance' policy on underage workers
Dude, you're getting a Dell – with BITCOIN: IT giant slurps cryptocash
1. Buy PC with Bitcoin. 2. Mine more coins. 3. Goto step 1
There's NOTHING on TV in Europe – American video DOMINATES
Even France's mega subsidies don't stop US content onslaught
You! Pirate! Stop pirating, or we shall admonish you politely. Repeatedly, if necessary
And we shall go about telling people you smell. No, not really
prev story

Whitepapers

Seven Steps to Software Security
Seven practical steps you can begin to take today to secure your applications and prevent the damages a successful cyber-attack can cause.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
Designing a Defense for Mobile Applications
Learn about the various considerations for defending mobile applications - from the application architecture itself to the myriad testing technologies.
Build a business case: developing custom apps
Learn how to maximize the value of custom applications by accelerating and simplifying their development.
Consolidation: the foundation for IT and business transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.