Do Different Rules Apply When Emailing Corporates and Consumers Marketing Promotions?

Using email marketing to send promotions is a common tool for businesses, allowing them to raise brand awareness and reach their target audience. However, it is essential to understand that legal rules apply when sending promotional marketing email communications. Further, the rules are complicated and differ depending on who the email recipient is. This can be particularly challenging for a business sending promotional emails to various recipients, from individual consumers to limited companies. Understanding the rules as part of your email marketing strategy is vital. This article will explore the different email marketing rules when emailing consumers and corporates. 

Which Laws Apply When Sending Promotional Emails?

Marketing emails serve many purposes, from promoting your products or services to articulating your business values. However, it is essential to note that legal rules apply when sending out ‘direct marketing’ communications. 

Direct marketing is the communication of advertising or marketing, by whatever means, directed at particular individuals. A primary example is sending an individual a promotional discount offer.

Should you choose to engage in email direct marketing, it is vital to understand and comply with the relevant legal requirements. These activities often require adherence to both the UK General Data Protection Regulation (UK GDPR), which governs the processing of personal data and the Privacy and Electronic Communications Regulations (PECR), which regulates the sending of electronic communications.

PECR is the critical law which sets out rules around how an organisation can lawfully send out marketing communications, including promotional emails. The UK GDPR rules will often also apply because marketing emails usually involve personal data. For instance, if your business sends promotional emails to an email address that can identify a living individual. 

Which Rules Apply When Emailing Corporates or Consumers Marketing?

Different rules do apply depending on whether you email corporations or consumers. However, the relevant laws are complex. 

The PECR sets various rules governing the sending of electronic communications. These rules clearly distinguish recipients categorised as ‘individuals’ (‘Individual Subscribers’) and those classified as ‘corporate entities’ (‘Corporate Subscribers’). It is crucial to grasp the differences between the rules applicable to each category of email recipients. As explored further below, the email marketing rules are more relaxed when sending emails to Corporate Subscribers. 

You should always clearly identify your business identity when sending out marketing emails. Additionally, you should provide recipients with a straightforward method to opt-out of receiving further marketing emails from you. 

What Rules Apply When Sending Emails to Consumers?

In most cases, a business requires consent to send marketing emails out to Individual Subscribers. 

Individual Subscribers are:

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

Note that this rule does not just apply to consumers – it also applies to non-corporate businesses, such as sole traders and traditional partnerships. 

Your business needs to obtain consent before sending out marketing emails to these recipients. It is also important to understand that consent has a very high standard to be valid. Consent must be freely given, specific, informed and unambiguous. You must prove that you have obtained valid consent to this high standard. A common way to achieve this is to rely on the fact that a recipient has ticked a box clearly indicating they consent to receiving marketing emails. 

What Is a ‘Soft Opt-In’?

There is also a limited exception to the rule regarding consent, known as the ‘soft opt-in’. 

Your business may send marketing emails to Individual Subscribers if you:

• obtained the contact details of the recipient during a sale (or negotiations for a sale) of a product or service to them;
• 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 marketing communication afterwards. 

In practice, many businesses rely on the soft-opt to send marketing emails. When doing so, however, it is essential to ensure that all of the soft-opt-in criteria apply. 

What Rules Apply When Emailing Corporates?

Unlike Individual Subscribers, your business may email Corporate Subscribers without their consent. As such, B2B email marketing involving corporates is generally more flexible with less stringent rules. 

 You can send promotional emails without consent to:

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

However, remember that various rules will still apply when emailing corporates. For instance, the recipients of your emails need the right to unsubscribe. Additionally, you need to be transparent about your business identity and maintain a record of any unsubscribed corporates, following which you should not email them. 

Why Is It Important to Comply With These Legal Rules?

Disgruntled email recipients can lodge complaints about a business with the UK data protection regulator, the Information Commissioner’s Office (ICO). The ICO has the authority to investigate complaints and issue penalties for non-compliance with PECR. These penalties can include hefty fines, with potential sanctions of up to £500,000 for breaches of PECR. However, it is not just the financial penalties that businesses need to be wary of. Reputational damage from allegations of sending unsolicited or ‘spam’ emails can be equally detrimental. Such allegations can damage customer trust and brand reputation in the long term.

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Therefore, it is crucial for businesses to fully understand the intricacies of PECR and ensure that their marketing campaigns adhere to its provisions. By maintaining compliance with PECR, businesses can mitigate the risk of facing regulatory fines, safeguard their reputation, and foster customer trust. 

Unfortunately, compliance with marketing law rules is an area with which businesses struggle, particularly given the complexities and different rules. If you are unsure whether your marketing campaigns are compliant, you should seek legal advice from a data protection lawyer.

Key Takeaways

Different legal rules apply, depending on whether you email marketing to individual consumers or corporations. As such, you must understand these rules before sending promotional emails. For instance, know your target email marketing audience and check that you follow the PECR rules when emailing them. Breaching the PECR rules can result in significant risk and damage to your business. As such, you should seek legal advice if you need help determining which rules your business needs to follow. 

If you need legal advice on email marketing campaigns, LegalVision’s 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.