Is Sending Unsolicited Email Marketing Unlawful? Our guide explains the UK law surrounding this issue.

A superb article by one of our clients – Ian Randall of Owllegal.org – on email marketing law.

A: INTRODUCTION
Once a business has defined its product and identified the market place for that product it comes face to face with its most demanding problem. The problem is this. How to inform as many people as possible of the existence of the product.

B: MARKETING
In days gone by, a direct mail shot would have done the trick but these days, this is far to costly as is the placement of an advert in a newspaper or an ad on either Radio or Television. Similarly, Google or Yahoo Adwords and Search Engine Optimisation can also be expensive.

C: LEGALITY OF EMAILS
As a result of this expense, emails have become the medium of choice for many cost conscious businesses and so the phenomenon that is Unsolicited Bulk Email (UBE) or as it is more widely known, SPAM, was born. Whilst a great many people consider that all unsolicited emails are SPAM, this is clearly not the case. The law relating to Electronic Mail to give it its full name is contained within the Privacy and Electronic Communications Regulations 2003 (as amended) and more particularly within regulations 22 and 23.(1) In general terms, subject to certain exceptions, the law states that ‘you cannot transmit or instigate the transmission of unsolicited material to an individual without consent’. This is SPAM. Further, the content of any such email should not contravene or for that matter encourage a visit to a website which contravenes regulations 7(2) or 8 of the Electronic Commerce (EC Directive) Regulations 2002. The protection contained within these regulations relates to INDIVIDUALS and not businesses.

D: OBLIGATIONS OF SENDER
A person who sends out emails to businesses has an obligation to (1) identify him/herself and (2) provide a valid email address to where an opt-out request can be directed. Only individual subscribers have enforceable rights to opt-out under these regulations, whilst ‘corporate/business subscribers do not have this enforceable right’. That said, it does seem somewhat counterproductive to continue to email someone who clearly has no interest whatsoever in your product. In addition, where the sender is a limited company the Companies Act requires all business emails sent by a corporation to include the following information (1) Company Name (2) Company registration number (3) Place of registration and (4) Registered office address.

E: INDIVIDUAL PROTECTIONS
Individual employees of a business or corporate entities do however have protection. For example, when the email is addresses as name@abcltd.co.uk, the individual named is able to call on the protection of s11 of the Data Protection Act 1998 (as amended). This section allows the person named to ask the sender to stop using his/her details for the purpose of direct marketing. The right to allow the recipient to request the sender to stop can be enforced through the courts under s11 (2) DPA 1998.

F: CONCLUSIONS
In effect, emails have become the new direct mail shots. Emails are cheap and easy to use with large numbers able to be delivered quickly and with relative security. The corporate recipient is faced with the relatively simple task if he or she does not wish to receive emails from the sender of either Unsubscribing or emailing the sender and asking them to stop. They also have the choice to delete them from their system. This might well take more than one email but the recipient cannot stop them!

The reality in this day and age is that emails are going to be used to market a full range of products from holidays to legal services. For the business community, this is a fact. Individuals have a right to retain their privacy unless they opt into a mailing list by either the use of click boxes or by giving their email address for a download but in any event, UBE/SPAM is a reality which is here to stay.

NOTES
(1)   Regulation 22 of the Privacy Regulations says:
“(1)     This regulation applies to the transmission of unsolicited communications by means of electronic mail to individual subscribers.
(2)    Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.
(3)    A person may send or instigate the sending of electronic mail for the purposes of direct marketing where
(a)   that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient;
(b)   the direct marketing is in respect of that person’s similar products and services only; and
(c)   the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.
(4)    A subscriber shall not permit his line to be used in contravention of paragraph (2).”
Regulation 23 of the Privacy Regulations says:
“A person shall neither transmit, nor instigate the transmission of, a communication for the purposes of direct marketing by means of electronic mail – (a) where the identity of the person on whose behalf the communication has been sent has been disguised or concealed; (b) where a valid address to which the recipient of the communication may send a request that such communications cease has not been provided;
(2)   Regulation 7 of the Electronic Commerce Regulations says:

“A service provider shall ensure that any commercial communication provided by him and which constitutes or forms part of an information society service shall (a) be clearly identifiable as a commercial communication; (b) clearly identify the person on whose behalf the commercial communication is made; (c) clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously; and (d) clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously.”