In an increasingly competitive world of trade and commerce, marketing our business through direct marketing emails is part and parcel of everyday life to maximise exposure. But how many of us are completely up to speed with the do’s and don’t s of anti-spam law and does your business e-marketing campaign comply with these rules?

What is anti-spam law?

Anti-spam law restricts the sending of unsolicited emails (spam) to individuals. It is still possible for unsolicited emails to be sent to corporate subscribers or a business if the emails are relevant to their work.  E.g it’s ok to send an email advertising professional indemnity insurance to a law firm but it’s not ok to send emails about diamanté dog accessories.

Anti-spam law is enforced by the Information Commissioner and breaches of these Rules in the Privacy and Electronic Communications Regulations 2003 can result in a fine of up to £5000.

Some businesses might from time to time subcontract their e-marketing campaign out to other company but the Information Commissioner will proceed against you first if the rules of anti-spam law are breached, as you or your business will be the ‘instigator’ of the direct email marketing communication.

Is the business you’re sending emails to an individual?

The restrictions on spamming individual subscribers apply not just to consumers, but also sole traders and partnerships because they are still individuals, despite the fact they run a business, and even if your email is within their business capacity.

A ‘corporate’ subscriber will usually be a Limited Company (Ltd) or a Limited Liability Partnership (LLP) as well as schools, hospitals, government departments, public bodies or agencies.

Rules for Individual Subscribers for direct marketing.

You can send direct marketing emails to individuals only if they have given specific consent and that they have been previously notified before receiving such emails from your business.

The specific consent given by the individual must involve some positive action. For example, if they have the option to tick the opt-in box or enter an email address in a field they are opting-in, these would be positive acts for this purpose, rather than a default pre-ticked box on your website or an email address taken from a business card received whilst networking.

What are ‘soft opt-ins?

In some circumstances individuals could still receive marketing emails from businesses even though they haven’t specifically given consent. This is known as ‘soft’ opt-in. Under the soft opt-in rules the sending of direct marketing emails are permitted if:

• The individual’s email address was obtained by your business in ‘the course of the sale or negotiations for the sale of a product or a service’.

• The direct marketing is in respsect of your ‘similar products and services only

• The individuals are given the opportunity to opt out in the first direct email you send out

This distinction between individual and corporate subscribers is not straightforward to apply in practice. In many cases it will not be clear to a marketing company whether an SMS or email address belongs to an individual or corporate subscriber or whether individual contact details have been obtained as a result of negotiating the sale of ‘similar goods and services’.

Where do marketing recipients’ contact details come from?

If this information has been obtained directly from potential recipients of marketing communications, recipients must have been told their contact details would be used in this way in accordance with data protection law. If details have been obtained indirectly via third parties (eg mailing houses), determine what warranties, representations and indemnities have been supplied by the supplier in relation to compliance with law and the use that can be made of these contact details.

Service suppliers

If, for example, a digital marketing agency is to be used to conduct electronic marketing on your behalf, consider the need for a detailed services agreement, specifying information to be provided to recipients of electronic communications, ownership of intellectual property rights in contact details and associated confidentiality, security and data protection obligations. Also consider the need for indemnities in relation to recording consents and opt-outs.

Do you need prior consent?

This is a key question to be established before any electronic marketing takes place. Generally the answer will be ‘yes’, not least because recipients of emails and texts may be based in other countries where stricter rules and penalties for unsolicited electronic marketing may apply. To summarise the English law, you will need a prior consent when sending unsolicited marketing emails, texts and faxes to individual subscribers, unless (in the case of emails and texts) they are an existing customer of similar goods and services. The rules are, in theory, more relaxed when marketing to corporate subscribers, but in practice these distinctions are not easy to apply.

Large marketing databases should also be checked against internal ‘suppression’ lists (lists of people who have previously asked not to receive marketing material) and also, in the case of faxes, against the FPS list maintained by the Direct Marketing Association to ensure that marketing communications are not being sent unlawfully to people who have previously asked not to receive this information. Regulators have emphasised that marketing to people in a way they object to is counterproductive.

Rules applying to all marketing emails

A couple of golden rules which apply to all direct marketing emails, whether to individual subscribers or corporate subscribers, solicited or otherwise:

• The identity of the sender must be made clear. The identity of the business must not be concealed or hidden.

• Provide a valid address to which subscribers can ‘unsubscribe’ to further messages being sent.