Feeds

Check mate

Email marketing: prior consent does not mean opt-in

5 things you didn’t know about cloud backup

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.

Secure remote control for conventional and virtual desktops

More from The Register

next story
6 Obvious Reasons Why Facebook Will Ban This Article (Thank God)
Clampdown on clickbait ... and El Reg is OK with this
Kaspersky backpedals on 'done nothing wrong, nothing to fear' blather
Founder (and internet passport fan) now says privacy is precious
TROLL SLAYER Google grabs $1.3 MEEELLION in patent counter-suit
Chocolate Factory hits back at firm for suing customers
Facebook, Google and Instagram 'worse than drugs' says Miley Cyrus
Italian boffins agree with popette's theory that haters are the real wrecking balls
Mozilla's 'Tiles' ads debut in new Firefox nightlies
You can try turning them off and on again
Sit tight, fanbois. Apple's '$400' wearable release slips into early 2015
Sources: time to put in plenty of clock-watching for' iWatch
Facebook to let stalkers unearth buried posts with mobe search
Prepare to HAUNT your pal's back catalogue
Ex-IBM CEO John Akers dies at 79
An era disrupted by the advent of the PC
prev story

Whitepapers

Endpoint data privacy in the cloud is easier than you think
Innovations in encryption and storage resolve issues of data privacy and key requirements for companies to look for in a solution.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Advanced data protection for your virtualized environments
Find a natural fit for optimizing protection for the often resource-constrained data protection process found in virtual environments.
Boost IT visibility and business value
How building a great service catalog relieves pressure points and demonstrates the value of IT service management.
Next gen security for virtualised datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.