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 electronicmarketing 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 isnt 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 havent asked for.

When a business owner needs legal advice on this issue, the two big questions Im 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?
Ill 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, Im 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 were 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 havent 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.



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.

Business development