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Whilst email marketing is a common business development tool, businesses must follow strict legal rules when sending marketing emails. Breaching these rules can lead to various negative consequences, from reputation damage to enforcement action. This article will explore common legal email marketing pitfalls your business should avoid.
Is My Business Allowed to Send Marketing Emails?
The law does not stop a business from sending marketing emails or conducting email campaigns. Email marketing is a regular business growth tool for most businesses. However, there are strict legal rules a business needs to follow before sending marketing emails. Individuals should not be ‘spammed’ with unwanted marketing emails. As such, legal rules exist to establish parameters around when a business may send marketing emails.
There are two fundamental laws to consider when sending marketing emails:
- the UK General Data Protection Regulation (UK GDPR) rules govern the processing of personal data. The UK GDPR rules will apply to email marketing to the extent that your business uses personal data to send marketing emails, for instance, by emailing an individual whose name is included in their email address; and
- the Privacy and Electronic Communications Regulations (PECR) rules apply when a business sends electronic communications for direct marketing. Direct marketing means the communication (by whatever means) of advertising or marketing directed at particular individuals. As such, the rules under PECR apply when your business uses emails to send marketing to individuals.
Most businesses must comply with both sets of laws when sending marketing emails through an email list.
Which Common Email Marketing Pitfalls Should My Business Avoid?
Unfortunately, a lot of businesses struggle to comply with the rules around email marketing. As such, the UK ICO (the data protection regulator) has taken a range of enforcement action against non-compliant businesses. This has included issuing fines for breaching the relevant legal rules.
Here are some common email marketing mistakes which your business should avoid when engaging in its email marketing efforts:
1. Failing to Understand the Difference Between PECR and UK GDPR
Most businesses will have heard of the UK GDPR. However, there is much less knowledge and publicity of the PECR rules. Whilst businesses commonly recognise the concept of ‘consent’ under the UK GDPR rules, failing to understand PECR and its rules around email marketing permissions is a severe mistake.
The law is the law, and ignorance is not an excuse for non-compliance. The PECR rules are complicated, and breaching them can have serious consequences. The UK ICO can issue extreme penalties for non-compliance, with fines as high as £500,000. Further, breaching PECR can lead to bad press, including negative news stories about ‘spamming’ customers and causing a nuisance. As such, it is vital to understand the PECR rules and how they apply to your business and its email marketing campaigns.
Before conducting email marketing campaigns, you must ensure you understand PECR and its rules. If you are unsure about PECR and how its rules apply to your business activities, you should seek legal advice to avoid such common pitfalls.
2. Not Distinguishing Between Corporate and Individual Subscribers
If your business is aware of the PECR rules, you should ensure that you understand its requirements and seek legal advice as necessary.
The legal rules around email marketing differ depending on the target recipients. Usually, your business needs to obtain consent before emailing consumers, sole traders, and non-LLP partnerships. This is unless an exception known as the ‘soft-opt in’ applies, which allows you to send marketing emails to previous customers who have not opted out. The soft-opt-in is a commonly relied upon mechanism for sending marketing emails.
The rules around sending marketing emails to limited companies, limited liability partnerships, Scottish partnerships and public bodies are far more relaxed. You do not need to obtain prior consent from these email recipients, although you do need to give them the right to unsubscribe from receiving marketing emails.
This factsheet sets out how your business can become GDPR compliant.
In practice, many businesses need help understanding that different rules apply depending on their target email marketing audience. This can lead to a breach of the legal regulations under PECR. For instance, if a business thinks it can send a sole trader a marketing email without consent if it has never engaged with that business before.
Your business should ensure that you are fully aware of the different rules that apply and that you understand whom you intend to send marketing emails to and which category they fall into. You will need to ensure that you follow the correct PECR rules accordingly, depending on your target audience.
3. Not Keeping Records of Who Has Unsubscribed From Marketing Emails
All individuals should have the option to unsubscribe from receiving your marketing communications. For instance, you can provide a clear unsubscribe link for individuals to click in marketing emails.
It is a severe mistake to fail to keep records of who has unsubscribed from receiving marketing emails from your business. You should note that individuals have the right to complain to the ICO. Failing to recall who has unsubscribed and continuing to email them could lead to individuals complaining that you are spamming them. Even a few individual complaints could lead to a regulatory investigation against your business. As such, it is vital to keep records of which individuals have unsubscribed and ensure you do not contact them again.
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Key Takeaways
Email marketing campaigns can be highly effective marketing tools. Whilst email marketing is a commonly used business practice, you should understand the legal rules which govern email marketing campaigns. Failing to comply with these rules and making the common mistakes explored above can have profound negative implications, such as enforcement action, for your business. If you require support understanding email marketing legal rules, you should seek legal advice to ensure your campaigns comply with the relevant laws.
If you need legal advice on email marketing rules, LegalVision’s experienced eCommerce lawyers can assist 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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