A Guide to E-mail marketing
A Guide to E-mail Marketing
E-mail marketing: a guide to the legal considerations
Unsolicited commercial e-mail (UCE or 'spam') is a major problem for the online industry and a common source of consumer frustration. However, a targeted and monitored e-mail advertising campaign can be an invaluable marketing exercise for businesses. This article considers some of the main legal issues for companies wishing to market their goods or services via an e-mail campaign:
Opt-in or opt-out?
The legal position differs from country to country on the issue of whether commercial e-mails should be sent only to those who have opted to receive them (opt-in) or to anyone except those who have opted out. A number of Directives have been proposed or enacted to harmonise anti-spam legislation throughout Europe, in particular the forthcoming Communications Data Protection Directive which will insist e-mail marketing is only conducted on an opt-in basis. The current UK position under the Data Protection Act 1998 imposes a requirement of fair processing, but generally allows marketers to choose between an opt-in or opt-out system. The E-mail Marketing Association (eMMa)'s recommended best practice is to market only to those individuals who have expressly opted to receive commercial e-mails but, at the very least, the recipient should have the opportunity to opt out of further communications.
Consult the registers
Organisations such as the Direct Marketing Association (DMA) run preference services for fax, telephone and e-mail marketers. The DMA maintains registers of individuals who have indicated that they do not wish to receive unsolicited correspondence and these should be consulted before commencing a marketing campaign. Companies should also regularly check their databases against the DMA lists.
Comply with the codes
The DMA issues voluntary codes of practice which regulate the conduct of marketing campaigns and eMMa has a charter for e-marketing businesses to follow. The content of any e-mails sent out will also be subject to general advertising regulations and should not infringe the Advertising Standards Authority Codes.
Information requirements
Under the E-Commerce Regulations, commercial communications must be clearly identifiable. The e-mail should identify the sender and state any promotional offers along with their terms. There are also various information requirements, including the name and address of the sender. There are further obligations in respect of unsolicited commercial communications, which must be clearly and unambiguously identifiable as such as soon as they are received. The intention of this regulation is to allow ISPs to delete spam e-mails without having to open them to identify them as spam.
Sector-specific regulations
Sensitive products such as medicine, firearms or tobacco will be heavily regulated in the jurisdiction of both sender and recipient. These laws may be mandatory and could apply to an e-mail even where the sender includes a statement that it is subject to the laws of a particular country. Professional and statutory rules may also regulate marketing in sectors such as financial or legal services.
This information is for general information purposes only, and should not be relied upon as a source of detailed legal knowledge. Legal advice should be sought before acting on the basis of any information above, AND WE CANNOT ACCEPT RESPONSIBILITY FOR LOSSES ARISING AS A RESULT OF FAILING TO DO SO.
NOTE: this briefing note was originally created as an IT Update by Kimbells LLP in December 2002
