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is your e-marketing legal? If you’ve never considered it, read on…

Mar 8th 2011

In today's online world it's common practice to build mailing lists, capture information and try and communicate with your contacts, but are you keeping within the law?

For any business, one of its major assets is goodwill. Established businesses may have spent many years as well as vast sums of money marketing their business to draw in customers as potential or actual purchasers of their goods or services. Equally start-ups agonize how to get their products or services into the public domain

Modern technology has, to a great extent, changed the way businesses obtain, store, retrieve and use the data they have on individuals. How many of us bother to write down (or even remember) a telephone number or email address when we can input details straight on to a P.C. or smart phone?

With developments in information technology and e-commerce there has arisen an entire sub-industry offering marketing lists to start-ups and established businesses. The result is that, in addition to your “home grown” database you could, on receipt of one email, have a database comprising a vast number of people that would otherwise have taken years to build up. Theoretically you now have access to literally thousands of potential customers.

Before sending off your first wave of marketing emails it is worth considering that the combined effect of the Data Protection Act and the Privacy and the Electronic Communications Regulations is to regulate the way personal data is gathered, stored, protected, used and transmitted. Whilst the Electronic Communications regulations are far too complex to deal with in a short blog, they are of great importance to any business that

  • collects and stores data on individuals
  • is considering buying in or renting a database or
  • is considering capitalising on its own database by selling or leasing it to third parties.

Enforcement of The Data Protection Act comes within the ambit of the Information Commissioners Office and their website is helpful in explaining the obligations of what they refer to as “Data Controllers”. It is definitely worth spending some time to look at the website to see whether your operations come within the scope of the Act, and, if so, what actions you need to take to comply with it.

The Electronic Communications Regulations require that, subject to certain limited exceptions, an individual’s consent should be obtained prior to sending them unsolicited advertising by email unless they have already ‘opted-in’ or expressly consented to the receipt of such emails. It is worth remembering that “express consent” means an individual has to take some positive step to agree to receive the emails. Therefore businesses cannot simply rely on a customer ticking a box to indicate that they do not want to receive them which, for some time, was the accepted way of dealing with the issue.

This rule only applies to new customers. You can continue marketing to existing customers provided you give them the ability to opt-out of future messages and that the marketing messages cover similar products and services to the ones already supplied. The rules also deal in detail with circumstances where data is bought in or transferred to third parties with particularly prescriptive regulations regarding the sending of data to a country outside the E.U.

Under the Privacy and Electronic Communications Regulations, businesses have to inform visitors to their website if they use cookies, and provide an opt-out facility for those who do not wish to accept them. In practice this will mean providing the user with a ‘privacy’ or ‘cookies’ statement that explains how they are being used and how they can be switched off. Individual’s rights will be reinforced by a revised e-privacy directive which is due into force in May 2011. Under the new directive users visitors to a website must be offered clearer information on how cookies are used and simpler ways to control whether cookies can be placed on their equipment.

It can be seen that both national government and the EU are trying to keep pace with developments in e-marketing.

As mentioned, this article is intended to give no more than a flavour of how regulations affect the use of personal information, databases and e-marketing. It therefore makes sense to discuss all aspects of your e-marketing strategy with your lawyer as well as your web designer prior to going live.

Source: Brian Scott at Max Montague Limited