The aim of discussing the law of e-mail marketing in England was not to provide specific advice, but to provide, in a general way, an overview of the main issues involved. The meeting of the BPP Legal Awareness Society, open only to BPP members, is at 5 pm room G2 of the BPP Business School. This meeting also discusses e-commerce and the growing importance of cloud computing for all businesses and the law.
The description below is not intended to offer specific legal advice. It is based on a presentation given at the BPP Legal Awareness Society given at 5 pm at BPP Business School, available only to BPP members (present and alumni). This should only be given by a practising barrister or solicitor. You should check all information with a reputable external source. However, this article is supposed to give an overview of the advice which is currently given on the BusinessLink website (accessed today, 15 June 2011).
Structure
The presentation looks at the following:
- The advantages of e-mail marketing
- Opt-ins and opt-outs
- General principles
- Practicalities
- Rules about supplier databases
- Data protection
- Online selling rules
- Outsourcing
The advantages of e-mail marketing
It’s considered that there are considerable advantages
Email can be a very cheap and effective marketing tool if you can get customers and potential customers to request updates from you by email.
It’s a flexible form of direct marketing.
You can communicate your messages more quickly and cost-effectively than using paper-based marketing.
You can tailor your message to specific types of customer.
You can build customer relationships and acquire new customers through relevant, well targeted emails that interest recipients.
Marketing emails are regulated by the Privacy and Electronic Communications Regulations. These define what you can in terms of sending unsolicited marketing emails legally.
You will also need to comply with the Data Protection Act, which applies to personal data used in email marketing.
Opt-ins
There are two types of procedure that can be used when signing up a new subscriber to receive your email marketing messages – single or double opt-in.
Single opt-in is when a person provides their email address and simply indicates that they would like to receive future emails from your business.
Double opt-in involves following-up the previous step by also sending the subscriber an email with a confirmation link they must click on to complete their registration.
Double opt-in is not a legal requirement, but is often considered best practice – as it eliminates the risk of someone having their email address registered by a third party.
By law, you must allow individuals to opt out or unsubscribe to receiving marketing from you at any time they wish.
You must comply with any opt-out requests as quickly as possible.
General principles
Target the right people – Email marketing is more successful if it focuses on people you know are interested in what you’re offering.
Keeping it relevant – If you have got a large database of customers and potential customers for your email marketing campaign, it’s worth analysing what you know about them, so you can send a more relevant message.
Get people to opt in to your email marketing – It is actually illegal to send unsolicited email messages except in limited circumstances. If customers have consented to receiving information from you in the past, ie opted in, you can send them information on other things you think they might be interested in.
Using incentives – People are more likely to opt in if you give them a useful incentive. For example, you can offer special services or discounts to customers who sign up for your email updates.
Practicalities
Building your email list – Don’t ask for too much information at the registration stage – lots of boxes to fill in will discourage people. Name, email address and phone number should be enough to start with.
Create an email newsletter – You could combine your marketing messages and news about your business into a regular bulletin, an email newsletter. Make your email newsletter engaging and keep your email newsletter relevant.
Build your mailing list – It’s worth promoting the newsletter in every way you can. Remember to put opt-in tick boxes for email information on website forms and all your marketing material.
The newsletter itself – Get the frequency right – only send newsletters when you have got something relevant and interesting to say.
Word of mouth, or viral marketing – This is also a powerful form of promotion, so you might encourage recipients to forward your newsletter to a friend or colleague.
Opting out – Remember that you’re legally required to give recipients the opportunity to stop receiving your newsletter. You should have an ‘unsubscribe’ option on every edition you send out.
Attract attention with the subject line, get straight to the point and use simple
Monitor and follow up your campaign carefully. At the very least, it’s valuable to keep a record of the number of responses you have received and from what type of customer. You can then assess which groups are more likely to respond to this marketing approach.
Rules about buying databases
Check with the supplier – If you buy (or rent) a mailing list, you need to check with the supplier what rights you have to use the list for email marketing.
Consent – If the list includes individuals (as opposed to companies), they must have given their consent to receiving unsolicited emails. You must also ensure that you only send emails that match the consent individuals have given.
Problems with the consent If you buy a database where the individuals have not given consent, or if you wish to use it for a different purpose, you need to get their consent.
If you make your first contact with the people on the database by telephone or email, you should make sure that you comply with the privacy rules for electronic marketing.
Data protection
Any personal information held on a database should be adequate, relevant, not excessive and should not be kept for longer than is necessary.
If you are the new owner of a database, you should decide how much of the information you need to keep, and then delete any that’s unnecessary.
You should not retain personal information for future use.
Respect people’s preferences
Some people choose not to receive sales or marketing by email by registering with the Direct Marketing Association’s Email Preference Service.
Check you don’t send marketing emails to anyone who has registered. Read about this on the https://www.dmachoice.org website. It isn’t a legal requirement, but it’s strongly recommended.
Online selling rules
Rules – When sending sales messages by email, the rules covering distance selling and online trading apply.
Data Protection Act – Under this Act, you must not allow a third party access to personal information kept in your database. However, you can provide personal information to a third party under certain circumstances.
Outsourcing
If you outsource certain processes that need access to your database of personal information – e.g. for email marketing – your business will remain liable for the information and keep full control over its use. In the event of a Data Protection Act breach, you are liable.
Protecting personal information – You must take the appropriate measures to protect the personal information you have, whether or not you process it yourself or outsource it. You might consider what type of information you have, what harm or damage could be caused from its misuse, what technology is available to protect the information, or how much it would cost to ensure an appropriate level of information security
If you employ another business to process personal information for you, you must obtain evidence from them that they can do so in a secure manner. In order to ensure information security, you should have a written contract with them, which ensures they only use and disclose personal information in line with your instructions and which requires them to take appropriate security measures to your standards
If you outsource processes to a business outside the European Economic Area, you will have to take further measures:
