The company’s press release said the EU Directive on Privacy and
Electronic Communications “demands that companies only send
unsolicited messages via email to non-customers if they have
actively opted-in to receiving them.”
Not exactly. The relevant bit of the Directive talks about the
need for prior consent, not opt-in. There is a difference.
Most people think of opt-in as ticking a box – but that is
just one way of getting prior consent.
The press release continued: “The legislation makes it crystal
clear that simply offering someone the opportunity to opt-out of
receiving unsolicited emails (or indeed pre-ticking an opt-in box)
does not comply with the Directive.”
No it doesn’t. The Directive says no such thing. Even prior
consent is not always necessary for email marketing. If you’re
emailing existing customers to promote similar products to those
they bought before, and these are people whose contact details you
obtained when selling or negotiating a sale, prior consent is not
needed – provided you identify your company, give an
opt-out on collection of the email address and include an
unsubscribe option with each email sent.
If cold-calling by email, prior consent is needed from the
recipient before sending unsolicited email marketing to individuals
(unless emailing them at a company address); but you can get prior
consent in a number of ways – as the Information Commissioner
explains in his
guidance (see page 5 of this 44-page / 817KB PDF). One of
them is an opt-in box, but it’s not the only way.
Another legitimate approach is to say: “By signing up for our
newsletter / buying this product / entering this prize draw, you
consent to receiving our email marketing. If you don’t want it,
check this box
So an opt-out box is still allowed provided you also make it
clear when you collect the email address that it may be used for
marketing and draft your data protection notice as a consent
statement. Consent can be obtained by clicking a button, sending an
email or subscribing to a service. You just need some form
of positive action by the individual, they must understand that
they are consenting and they must understand to what they are
consenting.
Opt-in boxes are my own preference when I visit other websites
and it’s our approach on OUT-LAW.COM; they’re just not compulsory.
Our site used to have an opt-out box. We switched, but not because
of the law. We switched because we learned about usability, because
we learned that users scan web pages
instead of reading them and, however obvious we make an opt-out
box, some people won’t see it.
So I do agree with the recommendation about switching to opt-in,
and the researchers are not alone in misunderstanding this law. But
how many “top UK companies” break the email marketing law? We still
don’t know.
By Struan
Robertson, Editor of OUT-LAW. This opinion piece has been
reproduced from Issue 13 of OUT-LAW
Magazine. Register
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