Ask the Expert: Email marketing – getting it right

James Corlett, partner at Beyond Corporate Law, discusses how to utilize email marketing.

If like me, you have bought something in the past 12 months (and are not leaving all your shopping to Christmas Eve like I did for the first and last time, last year). You will almost certainly have received emails from brands you’ve shopped with presenting you with promotions, discount codes and special offers.

As a business owner, you may even be sending or thinking of sending these emails to your customers as well, whether they are consumers or businesses.

It is essential to get this right. Not only can businesses be fined for non-compliance, but the subsequent publicity might cause serious reputational damage and stop customers from placing trust in your brand.

This is very much on the UK regulator’s horizon, the ICO. They have recently issued several recent high-profile fines and recently they published two new sets of guidance on the issue so it pays to be informed.

What Is Email Marketing?

In a nutshell, email marketing is when businesses send emails directly to their customers. It’s an effective way to reach a mass number of people to let them know about any promotions, events or new products.

Usually, a customer or visitor to a store’s website or brick and mortar store will be given the option to provide their email in order to receive marketing emails, usually promising interesting things to pique the customer’s interest such as discount codes, freebies and updates. Or, in some cases, a customer can be marketed to by email if they are already providing their details at the checkout point. Once the shopper or visitor has given their permission, they will usually receive emails to their inbox whenever the business decides to send them.

That sounds simple enough! Why worry?

Businesses need to be careful to recognize the limitations around email marketing. A business cannot just send any kind of email to anyone, but rather, certain rules and regulations need to be followed.

No, it is not legal to send unsolicited emails in the UK. According to the law, businesses need to gain the permission of customers before they can send them marketing emails (we’ll cover this in more detail below).

The updated guidance covers the legal requirements under the Privacy and Electronic Communications Regulations 2003 (PECR), characterized as what an organization must do. For example, businesses must give people the free choice to consent to email marketing messages and must keep the consent separate from other things such as terms and conditions to ensure such consent is freely given.

What even is PECR? I comply with the GDPR, is that not enough.

PECR governs using individual’s personal data for direct and e-marketing.

The PECR rules generally apply to anyone sending unsolicited messages by electronic mail for the purposes of direct marketing to recipients in the UK, which may only be done if either:

1. the sender has the recipient’s GDPR-level consent (ie, prominent, concise, easy to understand and separate from things like general terms and conditions), or
2. the sender has met each of the “soft opt-in” requirements for a particular recipient.

What do you mean by ‘consent’?

PECR’s standard of consent comes from the UK GDPR. This means that if seeking afreely given, specific, informed and unambiguous indication of a data subject’s wishes” to signify an affirmative agreement to email marketing (ie, no pre-ticked opt-in boxes or assumptions from silence or inactivity), the sender must be clear that the consent covers its electronic mail marketing messages, can be withdrawn at any time without detriment, and is granular and unbundled. The ICO recommends keeping a time and date-stamped record of the consent if needed for later accountability purposes. Marketers can also rely upon the so-called “soft opt-in” approach legitimate interests-based. PECR does not mention a “soft opt-in,” but the regulations provide that businesses may send marketing electronic mail to existing customers or prospects if certain conditions are met.

It’s important to be aware that the consent is not transferable to another customer email address, even if you become aware that they use another email address.

Also, in the UK, email must not disguise the identity of the sender and it must provide a valid contact address for people and businesses to opt-out or unsubscribe to further messages (in each and every message). This applies whether the message is solicited or unsolicited.

‘Tis the season to be jolly but make sure you check your marketing to ensure a Happy New Year too!

For more information or to discuss your needs please contact Beyond Corporate’s Commercial Team – commercial@beyondcoprorate.co.uk.