CDMS, a data and marketing firm, examined compliance with the EU
Directive on Privacy and Electronic Communications by the top 200
companies across 13 sectors, including banking, general insurance,
retail and mobile telecoms.
The companies were tested to see whether they consistently
offered non-customers the opportunity to actively opt-in or
otherwise consent to further marketing emails when their details
were recorded as the result of a promotion or enquiry. These
promotions appeared either on the company's own website, through a
partner company's website, in a third party e-newsletter, or as
part of an advertising or direct mail campaign.
According to CDMS, 69% of companies studied are compliant with
the legislation, a modest improvement of three percentage points
since its last survey in 2005.
Ian Hubbard of CDMS said: "Companies who have not complied are
putting their carefully built brands at risk, by putting out the
message to consumers that they apparently don't care about
legislation designed to protect their prospective customers'
privacy."
He added: "This effectively puts them in the category of junk
emailers, and associating them with a rising tide of spam, and
growing consumer concerns over the security of their personal
records."
The Regulations that implemented the EU Directive have been in
force since December 2003. To date, there have been only two court
rulings on their anti-spam provisions. The first was in 2005, when
chartered engineer Nigel Roberts won £300 in damages in an
undefended action against a Scottish marketing firm. The second was
last December, when Microsoft won a summary judgment to stop an
individual selling lists of email addresses to spammers.
CDMS noted that non-compliant companies urgently need to put
processes in place to limit their current risk. "In addition, there
is a major forensic and clean-up job to be done on these companies'
marketing databases," said Hubbard.
Struan Robertson, editor of OUT-LAW.COM and a technology lawyer
with Pinsent Masons, said: "A lot of confusion continues to
surround the rules on email marketing. Compliance is very
important, but the rules are not as restrictive as many people
think. There is a misconception that they demand opt-in marketing,
which most people visualise as ticking a box. That's not what they
say."
Robertson continued, "The rules talk about the need for prior
consent. One way of getting that is to have a tick box – but that
is just one way. Others exist. And 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."
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