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Businesses often send emails and make telephone calls as part of their marketing strategies. However, there are various stringent legal rules to follow when using these marketing methods. This article will highlight some key legal considerations for conducting email and telephone marketing.
Email and Telephone Marketing Legal Rules
When sending email marketing and making marketing calls, you need to comply with both data protection and electronic communication laws.
Most businesses know about the rules under the UK General Data Protection Regulation (UK GDPR). The UK GDPR sets rules about processing personal data about living individuals. However, there is less knowledge about the rules under the Privacy and Electronic Communications Regulations (PECR). PECR sets out various rules about using electronic communications for direct marketing.
Direct marketing means the targeting of advertising to specific individuals. PECR applies strict rules around using emails, texts and phone calls for direct marketing.
Compliance with PECR is mandatory. You will need to comply with the PECR rules if your business:
- sends marketing emails (e.g. emails about promotional offers); or
- conducts telephone marketing calls (e.g. calls to individuals to promote your products or services).
Email Marketing Rules
The legal rules on email marketing are complex. Whether you can send out marketing emails depends on whether your marketing targets corporations or individuals. Every time you send marketing materials, you should identify who you are. Additionally, you should provide individuals with an easy way to unsubscribe (and action such requests).
Individual Recipients of Emails
You usually need consent to send email marketing communications to individuals (i.e. consumers, sole traders and simple non-incorporated partnerships). Consent needs to be freely given, specific, informed and unambiguous. The consent must be a very clear form of positive action. For example, to demonstrate your customer consented to receiving the email you could:
- require your customer to tick a box confirming their consent; or
- make your customer send you an email to confirm they agree to receive your marketing emails.
One exception to gaining specific consent to sending marketing materials is an exception for existing customers, known as the ‘soft opt-in’.
You can send marketing texts or emails to your existing customers if you:
- have obtained the contact details of an individual in the course of a sale (or negotiations for a sale) of a product or service to that person;
- are marketing your own similar products or services; and
- give the individual a simple opportunity to refuse or opt out of the marketing, both when first collecting details and in every message after that.
In practice, a lot of businesses use this option, particularly e-commerce businesses.
Corporate Recipients of Emails
You can send emails to ‘corporate subscribers’ (i.e. limited companies, limited liability partnerships and corporate bodies) without consent. However, this does not apply to sole traders and non-LLP partnerships.
The individual receiving the email at the corporate organisation should always have the right to unsubscribe.
If your business sends email marketing to various types of customers, understanding the rules that apply can be difficult. You also need to document the lawful basis for processing personal data under the UK GDPR. For example, you will need to have a valid, lawful reason to use individuals’ names and contact details for email marketing purposes.
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Telephone Marketing Rules
PECR also sets out rules for marketing telephone calls (e.g. cold calling prospective customers). The most relevant rules for businesses are the rules around making live (not automated) telephone calls.
Generally, the following key rules apply, so you:
- can call any individuals or businesses who have specifically consented to receive marketing calls from you;
- cannot call numbers registered with the Telephone Preference Service or Corporate Telephone Preference Service (unless the individual has specifically consented to receive marketing calls from you); and
- cannot call an individual who has previously objected to your call.
When making marketing phone calls, you should always:
- state your identity;
- display your number (or an alternative contact number) to the person receiving the call; and
- if requested, provide a contact address or freephone number.
You will also need to consider the rules under UK GDPR. You should document your lawful basis for processing personal data when making telephone marketing calls.
Consequences for Breaching Electronic and Telephone Marketing Law Rules
These legal rules are complex, and unfortunately, many businesses get this wrong. The UK ICO (the data protection regulator) can apply various penalties for non-compliance. The penalties include heavy fines and prosecution of businesses in breach of the rules. Additionally, breaching the rules can lead to serious reputational damage and loss of trust from customers.
Fines for breaching the UK GDPR can be £17.5 million or 4% of total worldwide annual turnover, whichever is the higher. Breaching PECR is also extremely serious, with fines of up to £500,000.
As such, it is vital for businesses to ensure that they understand these rules and comply with them.
This factsheet sets out how your business can become GDPR compliant.
Key Takeaways
Any business conducting electronic email and telephone marketing needs to understand the legal rules that apply to those activities. Practically, these rules will apply to most UK businesses. The implications of breaching the rules are serious. Therefore, you must ensure you comply with the rules when running telephone and email marketing campaigns.
If you need help understanding the rules regarding email and telephone marketing, contact our experienced data, privacy and IT lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
The Privacy and Electronic Communications Regulations (PECR) govern the use of electronic communications. PECR prescribes various rules around direct marketing. Direct marketing means the targeting of advertising to specific individuals. PECR applies strict rules around using emails, texts and phone calls for marketing purposes.
This depends on the types of customers you are sending marketing emails to. You can freely send marketing emails to corporates, such as companies. However, you will usually need consent to send emails to individual consumers. There is a limited exception allowing you to send email marketing to existing customers, called the ‘soft opt-in’.
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