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Your business should avoid email spamming its customers at all costs. Not only does it cause frustration, it also exposes your business to serious risk. Therefore, preventing sending out spam content is essential to keep customers happy and protect your brand. You should want to be seen as a reputable company that does not send unwanted emails and spam. This article will explain the key legal rules around email marketing and how your business can take proactive steps to avoid email spamming customers.
Legal Email Marketing Rules
Sending email marketing is often a key marketing tool for business growth. However, strict legal rules apply when sending out marketing emails. This is an area in which regulators have been particularly concerned. The last thing individuals want is unwanted emails in their inboxes. The UK ICO (the data protection regulator) has taken several enforcement actions against companies who have spammed customers. Remember – it may only take a few complaints to bring spamming unlawfully to the regulator’s attention. Where you have large mailing lists and email lists of customers, it may be hard to track whether you are sending spam emails. However, this is a legal obligation. Every time you send marketing materials, you should identify who you are. You also should provide individuals with an easy way to unsubscribe (and action such requests).
In England and Wales, the key rules around email marketing fall under the Privacy and Electronic Communications Regulations 2003 (PECR). Businesses must comply with the relevant legal rules when sending marketing emails.
PECR applies different rules for email marketing, which depends on the email recipient.
In summary, PECR prescribes two key sets of rules. One set of rules applies to ‘individual’ recipients (known under PECR as ‘individual subscribers’), and another applies to corporate recipients (‘corporate subscribers’). We unpack these rules below.
1. Emailing Individual Recipients
Usually, you need consent to send email marketing 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, your customer could show consent by ticking a box or sending an email to show the recipient agrees to receive marketing emails.
You cannot rely on a pre-ticked box. You should keep clear records of what an individual has consented to, and when and how the consent was obtained. This will allow you to demonstrate your compliance with the PECR in the event of a complaint.
A very limited exception allows you to send email marketing to individual recipients who have not given consent. This is known as the ‘soft opt-in’. The soft-opt has a number of rules, but in short, it allows you to send email marketing to customers who had purchased from you before and did not opt out of receiving your marketing emails. You should be careful when using this exception and ensure you are comfortable with the rules.
2. Emailing Corporate Recipients
These rules are more relaxed when contacting corporates. You can send marketing emails to ‘corporate subscribers’ (i.e. limited companies, limited liability partnerships and public bodies) without consent. However, this does not apply to sole traders and non-LLP partnerships. For those organisations, you will still need to get consent.
Therefore, when sending out emails, ensure you comply with these rules depending on which types of customers you are contacting.
When sending marketing emails, always display a clearly visible unsubscribe button within your email. This prevents email recipients from receiving further emails if they do not want them and is also a legal requirement. Practically, it will help your company ensure an accurate list of individuals who want to hear about your promotional offers and future products.
What Emails are Not Spam?
Some examples of what is not spam include where you:
- respond to an email someone has sent you, e.g. a customer requesting a quote;
- provide an update message to an individual, e.g. telling them their delivery has been dispatched; or
- send a customer marketing information about new products and services where your marketing emails comply with the PECR rules mentioned above. For example, for consumer customers, if the individual has given clear consent to receive the marketing email or you are confident that you can rely on the soft-opt in exemption.
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When Emails Become Spam
As noted above, there are various rules to follow when sending marketing emails.
The ICO notes the following issues about spam emails:
- spam emails are emails you receive without your knowledge or consent. Usually, they contain marketing;
- spam emails are emails you have not asked for nor want;
- the same spam email could have been sent to millions of other people; and
- certain marketing emails will not be spam emails, so long as the sender has complied with legal rules when sending those emails.
Therefore, if you contact customers without following the rules under PECR, they could complain your business has spammed them.
What are the Risks of Spamming?
Spamming can negatively affect your business in various ways. A severe consequence can include the UK ICO issuing a financial penalty against your business. In addition to fines, the ICO has several other enforcement action powers (such as criminal prosecution powers). Individuals can also complain directly to the ICO about spam.
Additionally, severe brand damage can occur to your brand if sending spam annoys customers or potential customers.
Further, customers can label your marketing emails as ‘junk mail’, meaning they go directly into spam folders (so users do not see them). This can happen by users clicking the ‘spam’ button on email messages from your business. As such, the email service provider blocks further notifications to individuals. This could lead to a loss of business.
If you are unsure about whether your marketing emails could be spam, you should stop sending those emails out immediately. Likewise, take legal advice on your email campaign and the applicable legal rules. Spamming unlawfully is never worth the risk.
This factsheet sets out how your business can become GDPR compliant.
Key Takeaways
Sending marketing emails is a quick, broad-reaching and cheap way to advertise your business. However, you must be careful to avoid spamming. Sending spam may result in your business receiving ICO penalties and other enforcement actions. Additionally, you may lose potential customers or risk email systems auto-allocating your information to a junk spam folder.
If you need help understanding the legal rules concerning promotional emails and avoiding spamming your customers, 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
Yes. Customers can complain to you and report spam to the ICO using the ICO’s website spam complaint form. This is why it is critical to avoid spamming.
No. Your business can send marketing emails as long as you do so lawfully. Remember that you must always comply with the email marketing rules under PECR.
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