Direct Marketing Via E-mail - Regulations

UK law relating to the sending of unsolicited direct marketing material by electronic means are based on the EC Directive on Privacy and Electronic Communications and are modified by the General Data Protection Regulation which started to be enforced in the UK in May 2018.

A major aim of the Directive was to cut down on the amount of ‘spam’ that e-mail users receive from companies with whom they have never had dealings. The Department of Trade and Industry defines spam as ‘unsolicited commercial bulk e-mail sent without the consent of the addressee and without any attempt at targeting recipients who are likely to be interested in its contents’.

Whilst the intention behind the law is clear, the regulations only apply to UK businesses and will do nothing to prevent spam originating in countries where the relevant laws are less strict or, indeed, non-existent. For genuine UK businesses seeking to increase sales of their products to a targeted market, the effect will be more red tape in order to ensure they do not fall foul of the regulations.

The regulations apply to unsolicited commercial e-mails and text messages (SMS) sent to individual subscribers, rather than to company addresses, so much business-to-business e-marketing is not affected. However, under the regulations the term ‘individual subscriber’ includes sole traders, non-limited liability partnerships and their employees.

All direct marketing e-mails, regardless of whom they are sent to, must include clear sender and contact details. In addition:

  • businesses must gain prior consent in that an individual must have actively opted in before they are sent unsolicited marketing e-mail;
  • if your website uses cookies, or other tracking devices, to recognise previous visitors or to capture information about a user’s preferences, you must tell them this and inform them as to how any collected information will be used. Consumers must be given the right to refuse cookies;
  • individuals are given greater rights to decide whether they wish to be listed in subscriber directories. Directory providers will have to give them full information and a reinforced chance to be ex-directory.

If the recipient of the e-mail was a customer prior to 11 December 2003, you may continue to market to them providing:

  • their e-mail or SMS details were obtained through the sale, or negotiations for the sale, of a product or service;
  • the product or service you are marketing is a similar one;
  • the individual had the opportunity to opt out of receiving direct marketing material at the time they gave their contact details and is given the chance to unsubscribe or opt out on each new message that is sent; and
  • the identity of the sender is not concealed.

However, where a customer has previously registered an interest in a company’s products or services, but has neither bought anything nor entered into negotiations to purchase which then fell through, then that individual’s consent must be sought before you can contact them again for direct marketing purposes.

The Office of the Information Commissioner is responsible for enforcing the regulations by issuing enforcement orders to those who do not comply. Breach of an enforcement order is a criminal offence liable to a fine of up to £5,000 in a Magistrate’s Court or an unlimited fine if the trial is before a jury. Any individual who has suffered damages as a result of a breach of the regulations has the right to sue the person responsible for compensation.

View regulations.

The GDPR requires that consent to be sent marketing email must be unambiguouis and freely given and that the recipient must be given adequate information on how their information will be used.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Latest News

Court Finds Clarity in Cloudy Cider Trade Mark Dispute
Nature of Confusion Considered in Pet Insurance Trade Mark Dispute
New Code Aims to Boost Music Streaming Licensing Transparency
Registering a Trade Mark is the Best Way to Protect Your Valuable Brand
Local Authority Pays the Price for Privacy and Data Protection Breaches
High Court Aids Professional Firm Targeted in Ransomware Cyberattack
Selling a Business? Warts and All Disclosure is Vital
Direct Marketing Company Pays Price for Relaxed Approach to Personal Data
Creators of John Lewis Dragon Advert Cleared of 'Copying' Allegation
Seen One Television Drama? You've Seen Them All - Copyright Ruling
New UK Version of GDPR Progressing Through Parliament
Fast Fashion Retailer's Founder Sees Off 'You Stole My Idea' Allegation
Design Rights - Supermarkets Battle Over 'Strikingly' Similar Gin Bottles
Passing Off - Injunction Refused in Battle Between Premium Vodka Brands
High Court Aids Company Facing $6.8 Million Ransomware Demand
The Sticky Story of Paddington Bear and the Royalty Distribution Litigation
Rock Band's Valuable Name Forms Focus of Bitter Passing Off Dispute
Registering a Trade Mark? Are You Sure No One Else Got There First?
Red Bull Wings to Victory in High Court Trade Mark Dispute
How to Limit the Damage of Commercial Data Leaks? Consult a Solicitor
Are You the Target of a Libellous Online Review? Consult a Lawyer Today
Design Rights - Inspiration is One Thing But Deliberate Copying Quite Another
Trade Union Targeted by Social Media Campaign Awarded £50,000 Damages
Christening a New Business? It's Madness Not to Seek Professional Advice
Design Rights - Tourist Hoodies and T-Shirts Lack Novelty, High Court Rules
High Court Aids Ship Designer in 'Blatant' Breach of Confidentiality Case
Internet Piracy - Gaming Giant Nintendo Granted Websites Blocking Order
Employers are Generally Entitled to Fruits of Their Employees' Creativity
Ticket Touts Cannot Justify the Unjustifiable - Landmark Court of Appeal Ruling
Is Data Centre 'White Space' Subject to Business Rates? Question Answered
Film Studios Faced by Piracy Scourge Granted Internet Blocking Orders
AI Machines May Take Over, But Not Yet - Landmark Patents Ruling
Indirect Consumer Confusion - Bourbon Supplier Wins Trade Mark Battle
Even Modest Sole Traders Can Reap the Benefits of Trade Mark Protection
Naming a New Business? Watch Out for Others' Intellectual Property Rights
Is It Acceptable to Poke Fun at a Competitor? High Court Tackles the Issue
Website Terms and Conditions Ruled Worthless in Online Gambling Test Case
UK Internet Entrepreneur Wins £75,000 Libel Damages from Overseas Website
High Court Aids Record Industry to Stamp Out Stream Ripping
High Court Contract Dispute Focuses on Online Gambling Domain Name
Inner Workings of Online Property Platforms Analysed in Shares Sale Row
Writer's Ex-Partner Wins Recognition as Co-Author of Hollywood Screenplay
Maker of 'Shapewear' Jeans Blocks 'Rip-Off' Product from the Market
Live Boxing Events Organiser Granted 'Dynamic' Internet Blocking Order
Rightmove Fails in 'Confusingly Similar' Website Complaint
Advent of Artificial Intelligence Poses Fundamental Questions in Patents Case
Mormon Church Wrests Control of 'Confusing' Domain Name
'Average Consumer' Takes Centre Stage in Beverages Trade Mark Dispute
British Gymnastics Scores 10 Out of 10 in Trade Mark Infringement Dispute
Revolutionary Garden Hose Design Too 'Obvious' for Patent Protection
Prosecco Producers Successfully Oppose 'Nosecco' Trade Mark Registration