Legal Issues

When developing your subscription process, legal considerations are extremely important. Legislation (created with SPAM prevention in mind) will have a major impact on how or if consent is required; what information you collect; how you handle your data and even unsubscription.

In the UK, there are three pieces of legislation that you need to comply with – however, it is important to bear in mind that legal compliance is only the first step. Subscriber perceptions of your email marketing activity are just as important. The fact that your campaign is legal will not stop subscribers from hitting the spam button and damaging your reputation with an ISP.

The DMA (UK) publishes a number of ‘Best Practice’ documents that combine legal obligations with industry best practice recommendations.

1. Data Protection Act (1998)

Some marketers seem to think there’s something inherently distasteful about sending out emails at all. But if using email allows you to reduce the cost of sending offers to people, they’ll prefer a “grubby” email with low prices to a glossy TV ad that pushes prices up – especially in today’s economic climate.

According to the Information Comissioner’s Office, The Data Protection Act requires any company processing information to comply with the following principles:

  • Fairly and lawfully processed
  • Processed for limited purposes
  • Adequate, relevant and not excessive
  • Accurate and up to date
  • Not kept for longer than is necessary
  • Processed in line with your rights
  • Secure
  • Not transferred to other countries without adequate protection

The Act also “provides individuals with important rights, including the right to find out what personal information is held on computer and most paper records.”

Office of Public Sector Information’s website has the full Data Protection Act 1998.

The Information Comissioner’s Office has a number of useful documents for companies handling data:

2. EC Directive (Electronic Communications)

The Privacy and Electronic Communications Regulations outlines when you can send ‘electronic direct marketing’.

To summarise:

  1. Companies can only send marketing emails to individuals (including sole traders and unincorporated partnerships) who have given their permission (opted in).
  2. Individuals are assumed to have given their permission if:
    • you’ve obtained their details in the course of a sale, or negotiations for a sale of a product or service;
    • the messages are marketing similar products or services; and
    • the person is given an opportunity to refuse marketing when their details are collected, and in every subsequent communication

    This is known as a ‘soft opt in’

  3. Marketing emails sent to organisations (individuals at organisations) do not require permission, provided the product/service promoted is not a personal offer.
  4. For all email marketing, senders must tell the recipient who they are and provide a valid contact address.

Office of Public Sector Information’s website has the full Privacy and Electronic Communications (EC Directive) Regulations 2003.

The Information Comissioner’s office also has details on the EC Directive, including Basics, Rights, Legal Obligations, Guidance & Enforcement.

3. British Code of Advertising, Sales Promotion and Direct Marketing

The Cap Code reiterates the legislation covered in the Data Protection Act and EC Directive above, and extends to cover what you can say. The code aims to ensure that marketers are honest and accurate about the goods and services they offer.

The non-broadcast CAP Code can be downloaded here.

4. Sending Internationally

In most cases, companies sending international marketing emails must abide by the regulations in the country of the recipient. Be sure to check the regulations, and ask subscribers their country of residence where necessary.

The Federation of European Direct & Interactive Marketing has information on EU regulations.

The Federal Trade Commissionhas information on the US’ CAN SPAM Legislation.