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Do Businesses Need Consent to Send Marketing Emails?

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Sending marketing emails to customers is a common and often effective digital advertising strategy. However, when engaging in marketing email campaigns, your business should be aware of the legal rules to follow. Businesses often struggle to understand when they can send marketing emails freely or if they need to get consent to do so first. This article will explore whether you need consent to send marketing emails.  

What Are the Laws Governing Marketing Emails?

Common examples of marketing emails include emails promoting your:

  • products or services; and 
  • ideals as a business. 

However, emails about your services will be deemed as ‘service messages’ and will not count as direct marketing emails so long as there is no promotional content in your email. 

If you intend to send email marketing, there are specific legal rules to follow. You will need to comply with both the:

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The answer will depend on who your business sends marketing emails to. For certain types of customers, you will need to get consent unless an exception applies. For other types of customers, you can send marketing emails without consent. 

The PECR sets out different rules for sending out electronic communications. The rules differentiate between ‘individual recipients’ (‘Individual Subscribers’) and ‘corporate recipients’ (‘Corporate Subscribers’). Both categories of email recipients are treated differently, and it is essential to understand the differences between the rules. 

When sending your marketing emails, make sure you identify your business in your email communications. Also, make sure that recipients have a simple way to unsubscribe from receiving your marketing emails.

When Does Your Business Need Consent?

Generally, your business will need consent to send marketing emails out to Individual Subscribers. Individual Subscribers are:

  • consumers; 
  • sole traders; and 
  • non-incorporated partnerships. 

Your business must obtain consent before sending out marketing emails to these recipients. Note that consent has a very high standard in order to be valid. 

Consent must be:

  • freely given;
  • specific;
  • informed; and 
  • unambiguous. 

Your business must be able to prove that you have obtained valid consent. Commonly, a business requests consent by asking recipients to clearly tick a box indicating their consent. 

Are There Any Exceptions To The Rule Regarding Consent?

There is an exception to the rule around obtaining consent. This exception is called the ‘soft opt-in’. 

Your business is allowed to send marketing emails to Individual Subscribers if tour business:

  • obtained the contact details of an individual during a sale (or negotiations for a sale) of a product or service to them;
  • is marketing your own similar products or services; and
  • gives the individual a simple opportunity to refuse or opt out of the marketing, both when first collecting details and in every marketing communication following that. 

A lot of businesses rely on this exemption rather than relying on consent to send marketing emails. However, note that you must fulfil all of its criteria. If you are in doubt about whether you can rely on the soft opt-in, you should seek legal advice.

When is Consent Not Needed?

Your business may email Corporate Subscribers without their consent. This includes sending emails to:

  • limited companies; 
  • limited liability partnerships; and 
  • corporate bodies. 

However, note that certain rules still apply, even though consent is not required. For example, the recipients of your emails must always have the right to unsubscribe. Further, you need to be transparent about your business identity, and you should keep a record of corporates who have unsubscribed from receiving marketing emails from you. 

Unhappy email recipients can complain to the UK data protection regulator. The regulator has the power to issue various penalties for non-compliance, including heavy fines of up to £500,000 for breaching PECR. However, reputational damage and the allegation of ‘spam’ emails can be equally harmful to your business. As such, you must ensure you understand these rules and that your marketing campaigns are compliant.

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Key Takeaways

You do not always need consent to send marketing emails. However, you must consider and ensure you comply with the legal rules around email marketing. In particular, understand who your target audience is and make sure that you are following the correct rules when emailing them. This is a high-risk topic with which a lot of businesses need help with. If you are unsure about whether your email marketing campaigns are compliant, you should seek legal advice from an experienced data protection lawyer. 

If you need legal advice on email marketing law 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.

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