This clarifying guidance was published by the Committee of Advertising Practice, the body behind the Code which governs the content of UK non-broadcast marketing communications.
CAP also admitted that the latest edition of its Code, published March 2003, contains a discrepancy in failing to distinguish clearly between B2B (business-to-business) and B2C (business-to-consumer) marketing.
CAP also confirmed that where unsolicited consumer e-mails are sent – even to business addresses – then the rules have been breached.
Although lacking the force of legislation, the CAP Code is administered by the Advertising Standards Authority (ASA), and should be followed by all businesses. There are penalties available for non-compliance.
For e-mail marketers, the most important provision of the CAP Code is 43.4, stating:
"The explicit consent of consumers is required before [...] marketing by e-mail or SMS text transmission, save that marketers may market their similar products to their existing customers without explicit consent so long as an opportunity to object to further such marketing is given on each occasion."
CAP yesterday confirmed that, under its new interpretation, the prohibition:
"applies to e-mail marketing (including to mobile devices) sent to individuals in their private capacity (e.g. marketing for consumer products), even to their business e-mail addresses or mobile phone numbers, but not to direct marketing for business products sent to corporate subscribers (including to their named employees)".
"It was never intended," explained CAP, "that the new rule should ban unsolicited B2B e-mail marketing." It added that the Code would be amended accordingly.
The CAP Code should be read by marketers in conjunction with the recently passed Privacy and Electronic Communications Regulations which, from 11th December 2003, require prior consent or an existing customer relationship for e-marketing to be lawful.
Yesterday's amendment means that CAP's rules differ from the recently passed Privacy and Electronic Communications Regulations in one material respect:
"it [i.e. the new CAP Code interpretation] prohibits unsolicited consumer marketing to corporate subscribers on the basis that such recipients are being marketed to in their private capacity and so should be protected as if they were being contacted at their private e-mail addresses/mobile numbers."
The Regulations, on the other hand, do not apply to most work e-mail accounts, a loophole that upset anti-spam campaigners. While yesterday's guidance shows the CAP Code to be less strict than some e-mail marketers feared, it still has restrictions not found in the new Regulations. Therefore, at least in theory, it puts some limitation on consumer spam at work.
"The interpretation may not yet be in the CAP Code, but it is indicative of current policy," concluded CAP. "The ASA Executive are already turning away complaints if the complainant is clearly a corporate subscriber contacted in a business capacity."