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Sending customers and potential new customers email marketing is a standard business marketing strategy. Sending people promotional offers can significantly benefit a brand by fostering customer loyalty and encouraging repeat business. However, you must understand that legal rules govern the sending of such marketing emails. The laws that apply are stricter when sending marketing offers to individual consumers, so you need to take particular care. This article will explore whether your business can send consumers promotional offers and the fundamental legal rules that apply when doing so.
This factsheet sets out how your business can become GDPR compliant.
Which Laws Are Relevant to Email Marketing?
Email marketing has the potential to increase brand awareness and attract both existing and potential customers to make purchases. For example, brands frequently send emails advertising sales promotions, flash sales, or other special offers. Marketing emails play a crucial role in promoting products and communicating business principles. However, you need to understand that legal regulations govern these “direct marketing” communications.
In direct marketing, you send out specific individual advertisements or promotional offers, such as sending a sales offer promotion via email.
Before you proceed with email marketing campaigns, understanding and adhering to the relevant legal requirements is vital. Email marketing campaigns generally require compliance with both the UK General Data Protection Regulation (UK GDPR) when handling personal data and the Privacy and Electronic Communications Regulations (PECR) when sending electronic communications.
Privacy and Electronic Communications Regulations (PECR) outlines the rules for lawfully sending marketing communications, including promotional emails. Additionally, the UK General Data Protection Regulation (UK GDPR) can apply, mainly when marketing emails involve personal information, such as targeting individuals using their email addresses, including their names. You can learn more about how the UK General Data Protection Regulation applies to direct marketing.
What Rules Do I Need to Follow When Emailing Consumers Marketing?
Before you send out marketing emails (including promotional ones), you need to understand the legal rules for these activities.
The Privacy and Electronic Communications Regulations establish the rules businesses must follow when sending electronic communications. Within Privacy and Electronic Communications Regulations, there is a division between two types of marketing communications recipients: Individual Subscribers and Corporate Subscribers.
Individual Subscribers encompass a broad spectrum of recipients, ranging from everyday consumers to small-scale entrepreneurs such as sole traders and non-incorporated partnerships. For these recipients, you generally need to obtain their consent before sending them email marketing. Individual consumers fall into the category of Individual Subscribers, but it is important to note that some types of businesses do, too.
Consent is not just an exercise of ticking a checkbox – your business must demonstrate that individuals have expressly and willingly opted to receive marketing communications from you. Consent must be ‘freely given, specific, informed, and unambiguous’ to be valid. A common way to prove consent meets this standard is to ask recipients to tick a clear form approving their consent to receive marketing emails from your business.
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Are There Exceptions to Obtaining Consent?
A commonly used exception is known as the ‘soft opt-in.’ This exemption allows businesses to send marketing emails without your consent if specific conditions apply.
Your business can send marketing emails to individual subscribers without consent if the following:
- business obtained the contact details during a sale (or negotiations for sale) of a product or service to them;
- business is marketing its similar products or services; and
- relevant individual is given a simple opportunity to refuse or opt out of the marketing when first collecting their details and in every later marketing communication.
Why is Compliance With These Rules Vital?
Failing to comply with the legal rules surrounding marketing emails can have various negative implications for your business.
If consumers are unhappy about marketing emails, they can lodge complaints with the UK’s data protection regulator, the Information Commissioner’s Office (ICO). For instance, they could allege that your business has ‘spammed’ them.
The Information Commissioner’s Office can investigate such complaints and penalise businesses that have breached the Privacy and Electronic Communications Regulations rules. These penalties can be significant, with fines of up to £500,000. However, it is not just about financial penalties, as accusations of spam emails can severely damage a company’s reputation. Several businesses have faced embarrassment from the bad press surrounding spamming individuals with unwanted email marketing.
Key Takeaways
You can send consumers promotional offers as long as you comply with the relevant legal rules governing direct marketing. Under Privacy and Electronic Communications Regulations, sending marketing promotions via email to individual subscribers (including consumers) requires obtaining explicit consent. Consent must be freely given, specific, informed, and unambiguous to be valid. Recipients often actively opt-in, such as by ticking opt-in boxes on marketing consent forms. A limited exception known as the ‘soft opt-in’ permits marketing emails to be sent without consent if specific criteria apply.
Adhering to these rules when sending promotional offers to consumers is vital. Doing so will help your business maintain consumer trust, avoid potential legal penalties, and uphold your credibility with your customer base.
If you need legal advice on sending email marketing, 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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