What Should Businesses Know About the ‘Soft Opt-In’ Direct Marketing Exemption?

Sending marketing emails to customers is often a valuable digital advertising tool. However, there are several rules to follow when sending out marketing emails. In particular, it is mandatory to obtain consent before sending marketing emails to specific recipients, such as consumers. An exemption known as the “soft opt-in” allows businesses to send marketing emails to existing customers without explicit consent, provided certain conditions apply. This article will explore the background of direct marketing laws, the soft opt-in exemption, and the key points businesses should know before relying on it. 

Which Laws Apply to Email Marketing?

Email marketing is a common marketing strategy encompassing various messages promoting products, services, and business values. However, engaging in email marketing requires adherence to specific legal rules. Companies must comply with the UK General Data Protection Regulation (UK GDPR) when processing individuals’ personal data for direct marketing purposes and the electronic communications regulations outlined in the Privacy and Electronic Communications Regulations (PECR).

When Does the Rule Around Obtaining Consent Apply?

The rules around consent are complicated. In certain circumstances, you must obtain consent to send marketing emails to particular recipients. 

The requirement for consent under PECR depends on the recipients of your business’s marketing emails. Consent is necessary for specific categories of recipients unless an exemption applies, while consent is not required for others.

PECR establishes distinct rules for sending electronic communications to two main groups: ‘individual recipients’ (Individual Subscribers) and ‘corporate recipients’ (Corporate Subscribers). Each category is subject to different rules, highlighting the importance of understanding these distinctions.

Your business must obtain consent before sending marketing emails to Individual Subscribers, including consumers, sole traders, and non-incorporated partnerships. Consent must meet strict criteria to be valid, requiring it to be freely given, specific, informed, and unambiguous. Your business must also demonstrate that valid consent has been obtained, commonly demonstrated through explicit opt-in mechanisms such as checkbox consent forms.

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Your business can send marketing emails to Corporate Subscribers without prior consent. However, despite the absence of a consent requirement, you must still comply with specific rules. Recipients must always be able to unsubscribe from further emails, and transparency regarding your business identity is essential. Maintaining a record of unsubscribed corporate recipients is also vital to ensure compliance.

What is the Soft Opt-In?

There is an exception to the requirement of obtaining consent known as the ‘soft opt-in’. 

This permits a business to send marketing emails without consent to Individual Subscribers under specific circumstances, namely: 

• if your business acquired the individual’s contact details during the sale or negotiation of a product or service;
• if the marketing pertains to your own similar products or services; or
• if the individual is provided with a straightforward option to refuse or opt out of marketing, both at the initial data collection stage and in subsequent marketing communications.

Many businesses leverage the soft-opt-in exemption instead of relying on consent to send marketing emails. However, it is crucial to adhere to all the criteria above to rely on the soft-opt in.

What Key Points Should I Know About the Soft Opt-In?

When seeking to rely on the soft-opt in, you should note critical points, including the following:

• you should not rely on this to send marketing emails to new contacts, for instance, contacts obtained from bought-in marketing lists;
• you should not rely on this for non-commercial promotions, e.g. charity fundraising; 
• you should always give individuals the right to opt out of receiving marketing emails from initial collection from their details onwards; and
• you cannot start sending marketing emails about entirely different products or services to the recipient. 

If you require advice on whether you can rely on the soft-opt to contact specific customers, you should consider seeking legal counsel. 

Why Is It Vital to Get This Right?

Ensuring full compliance with all criteria for the soft opt-in exemption is crucial. If you do, you can avoid violating the PECR rules. 

Disgruntled recipients of marketing emails can lodge complaints with the UK data protection regulator. The regulator has the authority to impose various penalties for non-compliance, including substantial fines of up to £500,000 for violating PECR regulations. 

PECR is challenging for many businesses to navigate. If your company has any uncertainties regarding the compliance of your email marketing campaigns or reliance on the soft-opt-in exemption, seeking guidance from an experienced data protection lawyer is essential. 

Key Takeaways

The soft opt-in exemption presents a significant opportunity for businesses, granting them the ability to reach specific recipients through marketing emails without the necessity of prior consent. Nonetheless, leveraging the soft opt-in requires adherence to rigorous criteria. Your business must comply with all soft opt-in requirements before employing this exemption to send marketing emails to Individual Recipients. The repercussions of violating PECR regulations can be severe, necessitating caution when relying on the soft-opt-in. Therefore, legal counsel is advisable if there is any uncertainty regarding your business’s reliance on this exemption. 

If you need advice on email marketing rules, our experienced data, privacy, and IT lawyers can assist you 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.