Email Marketing for E-Commerce: Legal Compliance Rules for Businesses

In Short

• E-commerce businesses can send marketing emails, but strict rules apply under UK GDPR and PECR.
• Different requirements apply depending on whether recipients are individuals or corporate subscribers.
• Breaching email marketing rules can lead to complaints, reputational damage, and significant fines.

Tips for Businesses

Before sending campaigns, identify whether recipients are individual or corporate subscribers and apply the correct rules. Use clear opt-in wording and only rely on the soft opt-in where all legal conditions are met. Keep accurate unsubscribe lists, include a working opt-out in every email, and review campaigns regularly as enforcement rules continue to tighten.

Summary

This article explains the legal rules for email marketing by e-commerce businesses in the United Kingdom. Prepared by LegalVision, a commercial law firm specialising in advising clients on data protection and electronic marketing matters, it outlines how UK GDPR and PECR apply to marketing emails and the risks of non-compliance.

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Table of Contents

• Is an E-Commerce Business Allowed to Send Marketing Emails?
• Email Marketing Rules for E-Commerce 
• Different Groups of Recipients 
• Email Marketing Consent
• Emailing Corporate Subscribers 
• Compliance Checklist for E-Commerce Platforms
• Reputational Damage for E-commerce Platforms
• Enforcement Risk in a Changing Regulatory Landscape
• Key Takeaways
• Frequently Asked Questions

Email marketing is often a key driver of an e-commerce business’ profitability and growth. Platforms use email marketing campaigns to promote their products and services and to contact existing customers with offers. These campaigns can also support ongoing business development. 

However, to help reduce unwarranted communications and spam, strict legal rules apply. The risk for businesses is rising, as legal changes can lead to higher fines for breaking email marketing rules. E‑commerce platforms should understand the law before sending campaigns, as rules can be complex and vary depending on the recipient.

This article provides an overview of key compliance rules for email marketing in the e-commerce sector.

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Is an E-Commerce Business Allowed to Send Marketing Emails?

The law does not prevent an e-commerce business from sending marketing emails or running email campaigns, but your activities must comply with the strict legal requirements. 

When e-commerce businesses send marketing emails, two main laws apply. The first is the UK General Data Protection Regulation (UK GDPR). This law controls how personal information can be used in marketing emails. The second set of rules is the Privacy and Electronic Communications Regulations (PECR), which cover the use of emails and other electronic messages for direct marketing. 

In practice, most e-commerce businesses have to follow both UK GDPR and PECR whenever their marketing emails use personal information, like email addresses that can identify people.

Data protection law considerations are important when sending marketing communications. If the emails use personal information, the business must have a legal reason for using it, like getting the person’s consent or having a legitimate interest. They should look at each situation carefully to decide which reason is appropriate. 

Email Marketing Rules for E-Commerce 

UK GDPR controls how personal data is handled in general, but PECR is the primary law that sets the specific rules for sending marketing emails. PECR has strict requirements for email marketing and treats types of recipients differently; the rules you follow depend on who you are sending the emails to.

Different Groups of Recipients 

PECR differentiates between two types of recipients: Individual Subscribers and Corporate Subscribers. This distinction is important as different legal requirements apply depending on who the recipient of an email marketing communication is. 

Individual Subscribers include individual consumers and certain types of businesses (such as sole traders and non-incorporated partnerships). As a result, some business contacts are treated in the same way as private individuals for email marketing purposes. 

If you wish to send email marketing to Individual Subscribers, you will generally need their consent to do so, unless limited exceptions apply. 

Email Marketing Consent

Consent to send email marketing must be: 

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

Pre-ticked boxes or implied consent are not valid. A business must be able to demonstrate that the individual has actively and willingly agreed to receive marketing emails. In practice, this is often achieved through a clear opt-in mechanism, such as asking individuals to tick a box confirming that they agree to receive marketing emails from the business.

There is a limited exception to consent known as the soft opt-in. This allows marketing emails to be sent to existing customers (i.e. Individual Subscribers) without needing consent. This is only applicable if:

• the individual’s contact details were obtained during a sale or genuine negotiation;
• the marketing relates to similar products or services; and 
• the individual did not opt out at the time their details were collected. 

Organisations must also provide a clear opportunity to opt out in every subsequent marketing email. The soft opt-in must be applied carefully as it does not apply in all scenarios. 

Emailing Corporate Subscribers 

PECR does not require consent to send marketing emails to Corporate Subscribers, such as companies and LLPs. While rules are more relaxed for these recipients, individuals within corporate organisations must always have the option to unsubscribe.

Platforms must act transparently when sending marketing emails. They must not hide their identity and should provide a valid contact address for opt-outs. Every marketing email must include a clear unsubscribe option, and unsubscribe requests must be processed promptly. Ignoring opt-out requests poses a serious compliance risk and can result in complaints or enforcement action.

Compliance Checklist for E-Commerce Platforms

Some important compliance steps include the following:

• Carefully plan how you will send marketing emails and how your platforms will enable compliance, e.g. by designing clear website marketing opt-in forms where necessary. You should seamlessly build compliance into your customer e-commerce journey.
• Identify whether the recipients of your campaigns are individuals or corporate subscribers before sending marketing emails, and determine the rules to follow accordingly. 
• Only rely on the soft opt-in if all legal conditions are met, and make sure you record that decision. When used correctly, it can be a helpful and commonly used exception for businesses.
• Keep accurate and updated suppression lists for unsubscribe and objection requests to reduce risk. 
• Ensure that every marketing email clearly identifies your platform and includes a working unsubscribe option.
• Comply with data protection law rules where relevant to your email marketing activities. 

Reputational Damage for E-commerce Platforms

Non-compliance with email marketing rules can cause significant reputational damage and harm brand perception. Recipients who receive unsolicited emails or continue receiving emails after unsubscribing may view them as spam, leading to frustration and a loss of trust. 

This can result in complaints to the data protection regulator. Spam can be severely damaging for a business and should be avoided. 

Enforcement Risk in a Changing Regulatory Landscape

Breaching email marketing rules can result in significant consequences. Regulators may impose financial penalties for violations of the UK GDPR and PECR, and enforcement actions can lead to negative publicity and reputational harm.

Reforms under the Data (Use and Access) Act have increased the risks for businesses engaged in electronic marketing. This law aligns PECR penalties with those under UK GDPR, allowing fines of up to the higher of £17.5 million or 4 per cent of global annual turnover for non-compliance. 

This reflects a stronger approach to enforcement, particularly for unlawful practices such as email marketing, which regulators have consistently taken action on. Businesses should regularly review their email campaigns to ensure they remain compliant and reduce the risk of fines. If you need support with this, a data protection solicitor can assist you. 

Key Takeaways

Email marketing can be important for e-commerce growth, but it is subject to complex legal requirements. Compliance depends on a range of factors such as: 

• recipient status; 
• existing customer relationship; and 
• use of personal data. 

Non-compliance can lead to: 

• enforcement; 
• financial penalties; and 
• reputational harm. 

It is important to ensure compliance before you begin direct marketing activities. Legal advice can help an e-commerce business navigate its legal obligations and develop robust and compliant email marketing practices to avoid legal risk and foster trust. 

LegalVision provides ongoing legal support for e-commerce businesses through our fixed-fee legal membership. Our experienced lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.

Frequently Asked Questions