Business development · 20 March 2017

Direct electronic marketing: Obtaining consent to stay on the right side of the law

email marketing
Direct electronic marketing can include automated texts, emails and phonecalls

For the second in his latest Business Advice series, Grid Law founder David Walker explains how owners of small companies can ensure their direct electronic marketing strategy stays within the law.

Direct electronic marketing is an extremely powerful method of promoting your business, products and services. It’s cost effective, can be highly targeted and it’s fast to implement. It can also give you immediate feedback about what is and isn’t working so you can adjust accordingly.

For me, what makes direct electronic marketing really interesting, is the vastly different experience that can be felt by the sender and the receiver and how they react to the messages.

Putting the deliberate “spammers” aside, most businesses will send their marketing messages with the best of intentions. They want maximum impact without overstepping the line into illegality – or at least not stepping too far over the line. (See last week’s article for more information about this.)

For those on the receiving end, those same messages can be annoying, inconvenient and in the very worst cases they can cause stress and anxiety.

Why is this?

By its very nature, direct electronic marketing is intrusive into our daily lives and because of this, it’s highly regulated. Central to all of this regulation is the issue of consent, i.e., whether or not the receiver has agreed for you to market to them in this way.

In my opinion, it’s this issue of consent that plays a big part in the annoyance felt by an individual when they receive messages they haven’t asked for.

When a business owner needs legal advice on this issue, the two big questions I’m usually asked, are:

  • What is the minimum I need to do to be able to market to people?
  • What is my biggest risk if I don’t follow your advice?

I’ll do my best to answer these questions, but please note, there are so many different forms of direct electronic marketing and so many overlapping rules and regulations, I can only give a general overview. If you need some specific advice, feel free to get in touch.

Before answering the first question, we need to be clear about what we are talking about. When I say direct electronic marketing, I mean sending emails, texts and making automated calls. When I refer to individuals, I’m talking about individual people, not general marketing to a company.

However, if you market to an individual within a company, you will have to comply with the rules.

So, to answer the first question, if you want to be fully legally compliant, you must obtain valid consent to send direct electronic marketing to an individual. For this consent to be valid, it must be knowingly and freely given, clear and specific. Furthermore, it’s your responsibility as the marketer so show that the consent you have received is valid.

This definition of “valid consent” usually catches people by surprise and is more complicated than they expected, so let’s look at the individual elements of this:

“Knowingly given” means that the individual must know what they are giving consent for. You must explain (either verbally or by putting a prominent message on your website) that you wish to use their contact details to send them marketing messages.

“Freely given” means that the individual must have had a choice about whether or not to receive the marketing messages.

Consent is unlikely to be freely given if someone felt obliged to give it or they risked being penalised for not giving it (i.e., they would miss out on some other important information they needed if they withheld their consent.)

“Specific consent” relates to the type of marketing messages that are being consented to. For example, individuals should be able to give consent to receiving one form of marketing (email, text or automated calls) but decline to receive the others.

“Clear” means that the individual has clearly given consent, for example by completing a web form on your website. Some businesses deliberately use double negatives or confusing language when offering individuals the chance to “opt-in” or “opt-out”.

This makes it extremely difficult for people to know whether they should be ticking the box or not. Obtaining consent in this way is unlikely to be considered to be clear.

How to obtain consent

Now that we’re clear what is meant by “valid consent”, how do you go about obtaining it?

The best way to obtain valid consent is to have an “opt-in” box with a choice of options. This allows an individual to give their express consent that they want to receive your messages and they can choose the way in which they are to be delivered, i.e., post, email or text.

Many businesses don’t want to use this express “opt-in” method because they are concerned that far fewer people will sign up and so they will have significantly less people to market to.

For businesses that think like this, the next best options are either a pre-ticked “opt-in” box which individuals must untick if they don’t want to receive the messages, or an “opt-out” box which must be ticked to prevent marketing to them.

The trouble with these options is that it’s not always clear whether you have received valid consent. All you know is that they haven’t withdrawn the consent you placed on them, and that’s not the same thing.

For example, the individual could have been in a hurry, looking at your website on their smart phone, with cold fingers and despite not wanting to receive your marketing messages, unticking a box on a tiny touch screen was almost impossible for them.

Another option is what’s known as a “soft opt-in”, which an exception to the “opt-in” rule.

A “soft opt-in” allows you to send marketing emails and texts to individuals where you have collected their details during the course of making a sale to them (or negotiating a sale). You can then offer them similar products and services without needing their express consent again.

However, this is where most people stop and think they have valid consent, but if you’re relying on this “soft opt-in”, there are two more steps to comply with.

First, the individual you are marketing to must have been given every opportunity to opt-out at the time the sale was made and second, they must be given the opportunity to opt-out with each and every message sent thereafter.

Many of my clients just want to hide the fact that they’re going to use an individual’s personal information for marketing purposes in the “small print” or in a privacy policy that’s probably never going to be read. This is unlikely to be enough to imply consent and so I always advise against this.

Another important point to remember is that consent does not last for ever. Individuals have the right to withdraw their consent and stop receiving marketing messages at any time.

The easiest way to comply with this obligation is to have an “unsubscribe” link on all your emails and if you are sending texts, the recipients should be able to reply with something simple such as “STOP” and not receive any more messages from you.

Even if someone doesn’t specifically “opt-out”, you should regularly review your marketing database and decide whether it’s still reasonable for you to be marketing to a particular individual.

The law doesn’t say what a reasonable length of time is, but if an individual isn’t opening your emails, you need to consider stopping sending them, or at least faze them out over a period of time.

Direct electronic marketing: The risks

So, what’s biggest risk if you don’t follow this advice?

In my experience, marketers are likely to push the limits of what they can get away with when it comes to direct email marketing because they think the chances of adverse consequences are low. That may have been true in the past, but these days the risk is very real and it’s growing.

If you blatantly and persistently flout the rules, you could be fined up to £500,000 for breaches of the Data Protection Act and you may also be committing a criminal offence.

Now, I accept that a fine on this scale is likely to be rare, but many, many more businesses are getting fined tens of thousands of pounds for overstepping the mark. For any business that’s going to put a serious dent in the bottom line!

Not only that, you risk bad publicity and damage to your brand and reputation which will lead to lost sales. Also, you could be sued for compensation by any of the individuals you sent the marketing to who objected to it.

There are practical issues to consider too. If too many people mark your emails as “spam” it will affect your delivery rates and put you in breach of your email provider’s terms and conditions. This means you could have your service cut off and lose the ability to send marketing emails while you switch to a new provider.

So, if you want to stay on the right side of the law and make the most of the benefits that direct email marketing can provide, make sure you obtain valid consent and review it regularly.

If you’re wondering whether it’s reasonable to continue sending to someone, think about how you would feel to be on the receiving end. If you would unsubscribe, or there’s a risk that you would mark it as “spam”, even out of annoyance, then play it safe. Remove that individual from your marketing database.

If you have any questions about any of the issues I have raised, please feel free to email me at editors@businessadvice.co.uk.

David Walker is the founder of Grid Law

Catch up on the first in David’s marketing series: Promoting your business – The line between impact and illegality

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ABOUT THE EXPERT

David Walker is the founder of Grid Law, a firm which first targeted the motorsport industry – advising on sponsorship deals, new contracts and building of personal brands. He has now expanded his remit to include entrepreneurs, aiding with contract law, dispute resolution and protecting and defending intellectual property rights.

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