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Electronic mail marketing

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In brief…

You must not send marketing emails or texts to individuals without specific consent. There is a limited exception for your own previous customers, often called the ‘soft opt-in’.

You can send marketing emails or texts to companies. However, it is good practice to keep a ‘do not email or text’ list of any companies that object.

In more detail…

What are the rules on electronic mail marketing?

The rules on electronic mail marketing are in regulation 22. In short, you must not send electronic mail marketing to individuals, unless:

  • they have specifically consented to electronic mail from you; or
  • they are an existing customer who bought (or negotiated to buy) a similar product or service from you in the past, and you gave them a simple way to opt out both when you first collected their details and in every message you have sent.

You must not disguise or conceal your identity, and you must provide a valid contact address so they can opt out or unsubscribe.

What about texts and other types of electronic message?

This same rule applies to emails, texts, picture messages, video messages, voicemails, direct messages via social media or any similar message that is stored electronically.

The term ‘electronic mail’ has an intentionally broad meaning that includes new forms of messaging. It is defined as:

“any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service”.

What is a ‘soft opt-in’?

The term ‘soft opt-in’ is sometimes used to describe the rule about existing customers. The idea is that if an individual bought something from you recently, gave you their details, and did not opt out of marketing messages, they are probably happy to receive marketing from you about similar products or services even if they haven’t specifically consented. However, you must have given them a clear chance to opt out – both when you first collected their details, and in every message you send.

The soft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts (eg from bought-in lists). It also does not apply to non-commercial promotions (eg charity fundraising or political campaigning).

Is there a text or email version of the TPS?

No. There is no equivalent email or text preference service. This is because you may only send emails or texts to individuals if you have their specific consent or have already offered them an opt-out, so this type of central opt-out register shouldn’t be needed.

When can we email or text individuals?

You can email or text an individual if they have specifically consented to receiving emails or texts from you – for example, by ticking an opt-in box. See What counts as consent?

You can also email or text an existing customer who has bought (or discussed buying) a similar product or service from you in the past – but only if you gave them a clear chance to opt out of getting marketing emails or texts when you collected their details, and in every message.

When can we email or text businesses?

Sole traders and some partnerships are treated as individuals – so you can only email or text them if they have specifically consented, or if they bought a similar product from you in the past and didn’t opt out from marketing messages when you gave them that chance.

You can email or text any corporate body (a company, Scottish partnership, limited liability partnership or government body). However, it is good practice – and good business sense – to keep a ‘do not email or text’ list of any businesses that object or opt out, and screen any new marketing lists against that.

You may also need to consider data protection implications if you are emailing employees at a corporate body who have personal corporate email addresses (eg [email protected]).

For more information, see our separate guidance on business-to-business marketing.

Do these rules apply to viral marketing?

Yes – you must comply if you send a marketing message, or if you ‘instigate’ someone else to send it.

Some organisations try to get round the rules by asking people to forward a marketing message to their friends. However, you are ‘instigating’ them to send that message, so you must still comply with PECR. (This does not mean you are responsible every time a customer forwards a message without your knowledge – you must have encouraged them to send it.)

Another form of viral marketing is to ask people to provide their friends’ contact details. However, you must still ensure that any marketing messages you send to those friends comply with PECR. This may be difficult, as you cannot be sure whether the friends actually agreed to give you their details. We would therefore advise against this type of viral marketing.

What about online marketing and behavioural advertising?

If you are marketing using direct messaging via social media, the electronic mail marketing rules apply.

PECR do not set out specific rules on other types of online marketing such as display or banner ads. However, there are rules on cookies, which are often used to profile users and target behavioural advertising.

If you are using personal data, you also need to comply with the Data Protection Act and the UK GDPR. For more information on this area, see our separate guidance:

Where can we get more information?

For more detailed information and practical advice on this topic, see our direct marketing using electronic mail guidance.

Checklist

☐ We only send electronic mail with consent (unless contacting previous customers about our own similar products, and we offered them an opt-out when they gave us their details).

☐ We offer an opt-out (by reply or unsubscribe link) and act on this promptly.

☐ We keep a ‘do not contact’ list of anyone who opts out or unsubscribes from our electronic mail.

☐ We screen against our ‘do not contact’ list and we don’t send electronic mail to anyone who has asked us not to.

☐ We don’t disguise or conceal who we are when we send electronic mail.

☐ We don’t ask or encourage people to forward our electronic mail marketing to their friends or family.

☐ We don’t ask people to give us the contact details of their friends and family to use for electronic mail marketing.