EU Directive Guidelines
The Information Commissioner has issued guidance notes to accompany the Privacy and Electronic Communications Regulations. The regulations apply to all electronic communications – telephone, fax, email, text message, picture message and automatic calling system.
Here are some extracts from the guideline, with particular focus on email marketing. To see the full Guidelines visit the DTI website.
The Regulations define electronic mail as “any text, voice, sound, or image message sent over a public electronic communications network …”
The law requires:
- cannot transmit unsolicited marketing material to an individual subscriber (an exception is “soft opt in” 22(2))
- You cannot permit your line to be used to contravene Regulation 22(2)
- All emails sent must not conceal the senders identity
- A valid opt-out option must be available
Categories of recipients:
- person - a legal person, eg. a business, a charity or a living individual
- Caller - the instigator of the call, fax, email etc
- Subscriber - the person paying for the line
- Individual subscriber - a residential subscriber, sole-trader or non-limited liability partnership in England, Wales and Northern Ireland
- Corporate subscriber - includes corporate bodies eg. limited companies in the UK, limited liability partnerships in England, Wales and Northern Ireland, any partnership in Scotland; schools, government departments and agencies, hospitals and other public bodies.
What’s the difference between “solicited marketing messages” and “unsolicited marketing messages you consent to receive”? A solicited message is one that has been actively invited, the other is one you have not specifically invited, but have positively indicated that you don’t mind receiving.
Ticking a box is not the only way to give or gain consent, this is just an example of a “good method”. The crucial consideration is that the individual fully understands that by their actions they are signifying consent.
Opt-in vs Opt-out
Historically ticking an opt-in box meant the user consented. Offering an Opt-out box gives the user the option to register an objection, but failure to tick the opt-out box does not mean they have consented, they have just not objected.
How long is consent valid for?
“For the time being” does not mean indefinitely, neither does it mean there is a time constraint. Consent will remain valid until there is good reason to consider it is not, eg. when consent is withdrawn.
How to stop unsolicited electronic marketing emails:
Lots of people are concerned that opting-out of some emails just helps to confirm that their email address is valid. Most spam comes from outside the UK and should not be replied to unless the user is familiar with the company or trusts the source of the email.
If you receive unwanted mail from inside the UK, firstly contact the company concerned and tell them to stop sending you further messages. Senders should be identifiable as they are required by law to provide their contact details and must not conceal their identity. Responsible marketers will normally comply with opt-out requests, although we have tested a few ourselves and found it very difficult to get removed from a list. The only circumstance where companies are not legally obliged to comply with opt-out requests is when they are marketing corporate subscribers by electronic mail without processing personal data.