Email Marketing Regulations and Best
Practice – B2C
UK, Europe, US
Introduction
This guide is for organisations that wish to send email marketing
messages, and is intended for those with a B2C relationship only.
As a marketer you’ll want to optimise on your email contact
strategy whilst ensuring you operate completely within the law. At
Intilery we recommend that you follow these guidelines to ensure
that you abide by current regulation within in each geographical
zone.
It’s also worth remembering that customers will only be receptive
to your offering if they feel their information has been used fairly
and justly, therefore it’s not in the customers’ interest or the
interest of your organisation to deviate from the law.
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Often marketing regulations can be confusing, overly complex
and written in a tangle of “legalese”. In this guide, we’ve
simplified the jargon to help you understand the law.
Our guide explains how to apply the regulations to your business
by giving practical examples and answering frequently asked
questions.
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Overview
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The consequences of emailing without permission.
If you contact people without permission they are more likely to report your
campaigns as spam, and less likely to engage with your marketing effort or
make purchases.
Spam Reports
When someone reports an email as spam, their inbox notifies their internet
service provider (ISP) that the message looks suspicious. The ISP then tracks
Spam reports can lead to filtering or blacklisting, which makes it impossible
how many people on their network report emails from the sending domain
for some subscribers to receive any of your campaigns, damage your
as spam.
reputation and negatively affect your ability to deliver campaigns in the
future.
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In extreme cases regulating bodies will fine offenders.
Frequently asked questions
Q: Which market has the strictest laws?
Q: What is a soft opt-in?
A: The UK has perhaps one of the strictest policies regarding email
marketing, as it requires an opt-in approach. This means that no direct
marketing email can legally be sent to a recipient without first obtaining
that recipient’s express consent. This rule has one small exception and
that pertains to businesses’ previous customers. These organisations can
email former customers without their express consent, but as with all
email communications, they must include a very obvious way for these
contacts to opt out.
A: The term ‘soft opt-in’ or implied consent applies to situations where
the organisation can email the customer without their explicit consent.
The 'soft-opt in' provides that organisations can send marketing emails
when:
• Contact details have been obtained in the course of a sale or
negotiation for sale
• The emails are only marketing the organisation's own similar
products or services
• The person is given a simple opportunity to opt out of the
communications, both when collecting the details and in every
message after that.
Q: What constitutes consent
A: You will often need a person’s consent before you can send them a
marketing message. Gaining consent must involve some form of positive
action – for example, ticking a box, clicking an icon, sending an email, or
subscribing to a service – and the person must fully understand that they
are giving you consent. You cannot show consent if you only provide
information about marketing as part of a privacy policy that is hard to
find, difficult to understand, or rarely read.
The clearest way to obtain consent is to ask the customer to tick an optin box confirming they are happy to receive your emails. You should keep
clear records of what a person has consented to, and when and how you
got this consent, so that you can demonstrate compliance in the event of
a complaint.
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Q: What is a double opt-in?
A: Double opt-in is a two-step process where a subscriber fills out a
signup form and receives an email with a link to confirm their
subscription. Double opt-ins are a way of ensuring that you target
subscribers who really want to hear from you.
Q: I’ve got a database of previous customers dating back a
few years. I’ve never emailed them before, but I’d like to
re-engage with them now. Can I email them?
Q: I have a database segment that are opted-in to receive
direct mail from us. To save costs, we’d like to move over
to sending them emails. Can I email them?
A: Yes you can, with a few conditions. Marketing to previous customers is
covered by a “soft opt-in” in the UK & EU, where the details were
collected in the course of the sale. For this to apply, the emphasis is on
marketing similar products to those originally purchased – this doesn’t
need to be specific to product sub-categories, as long as you aren’t
marketing something dramatically different – e.g. a washing machine
when the customer bought a holiday etc.
A: Unless they’ve specifically opted-in to receiving emails, the answer is
probably not (in the EU, at least). Opting-in to marketing
communications doesn’t cover all channels, and EU regulations stipulate
that you need consent for each form of electronic communications.
As with all emails, you also need to respect the opt-out. You should
ensure that all of your emails contain an easy-to-find unsubscribe link, so
that it’s clear that your recipient can opt-out at any time. For messages
sent within the EU, you should have provided your customers with an
opportunity to opt-out of communications when they gave you their
details. This is usually given as a standard tick box on most data
collection forms, but is not a requirement in the US.
Opt-ins don’t have a time limit in any of the international email
regulations, so it’s up to you to decide what constitutes reasonable in
terms of whether it’s appropriate for you to send an email. Email
addresses that are 10 years old may well be out of use, and 10 years is a
long time to go without hearing from you – you need to decide which
segments of your database are likely to give you the best return.
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If the recipients are in the US, the regulations are different, so as long as
you’re transparent about who you are and what your email is about, and
the recipient hasn’t opted-out of emails, you’re free to send what you
like.
To send the emails in the UK/EU, your data segment needs to either:
•
•
Have given you their details during the course of a sale (e.g. be
existing customers, or have enquired about your
products/services), and been given the opportunity to opt-out of
email communications, or
Actively opt-in, or give consent, to receiving marketing emails
from you. You shouldn’t send them an email to ask if they opt-in,
but there are lots of ways to build an opted in email list that
Intilery can help you with.
Q: I’ve got an email database with contacts in multiple
countries. How can I make sure that I’m compliant with all
of them?
A: This can be tricky. Email regulations apply to the country of receipt,
not the country of origin, so what might be acceptable in your home
country may well be unacceptable in the country of the recipient. The
safest thing to do is abide by the strictest regulations you know –
restrictive though some of them may seem. We’ve summed all of these
up in the “International Best Practice” section.
The most important thing to remember is the one thing that’s present in
all of the email regulations, irrespective of country – respect the opt out.
All marketing emails need to include a clear, easy to find option to
unsubscribe, and requests should be followed up as soon as possible.
Q: I’ve got some users that unsubscribed a while ago, but
I’ve noticed that they’ve been browsing the site again.
They’re clearly interested, so can I email them?
A: No. Once a customer has opted-out, you need to respect that. Only if
they actively opt back in to email communications can you message
them – remember, not refusing isn’t the same as consenting, so just
leaving an opt-out box unchecked doesn’t count as actively opting in.
The rule of the “soft opt-in” doesn’t apply here – the opt-out takes
precedent over everything else.
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Q: I don’t really want my recipients to opt-out. Can I just
leave the unsubscribe option out for this send? Or maybe
hide it somewhere hard to find?
A: Definitely not. In case we haven’t made it clear already, the ability to
unsubscribe is paramount to complying with all email regulations, in
every country. The best way to prevent people on your email list from
unsubscribing is to provide them with interesting, relevant content that
they’ll want to keep receiving. Personalising your email content based on
user preferences and behaviour is a great way to achieve this.
If the occasional person does click your unsubscribe link, don’t worry. It
doesn’t mean that they’ll never want to buy from you again. What is does
mean is that you need to find a different way of engaging with this person
– and that you’ll no longer be spending time and effort emailing a person
who doesn’t want to get your emails, freeing you up to spend more time
on the people who do.
Q: I’ve bought some third party data from a reputable
supplier. Everyone on the list has opted in to receive
marketing communications from third parties – can I
email them?
A: In the US, yes. In the UK and some other EU member states, no. While
third party or indirect opt-in works for more traditional forms of
marketing communications, like direct mail, the regulations state that
digital communications need their own, company specific opt-ins.
Unfortunately, that covers email.
Q: I’ve got a large list of email contacts that signed up to
receive information about our products. We’re launching a
new service in the next few weeks, can I email them about
it?
recipient with a clear opportunity to opt-out, and that you’re messaging
them about relevant products and services.
A: It depends on what your new service is. If it’s similar to your existing
products and services, then yes, that’s fine. If, on the other hand, it’s
considerably different, e.g. a different industry altogether, you’re going
to be at risk of breaching regulations (unless you’re sending to the US).
Unfortunately, none of the regulations provide a guideline to what would
be considered a ‘similar’ product or service, so it’s down to your
interpretation to make a reasonable call.
The safest option is to only send unsolicited emails (i.e. those being sent
to people who have not actively opted in) to existing customers. This is
counted as a soft opt-in. For this to be valid, you need to give your
customers the option to opt-out at the time of providing you with their
data.
International best practice
Unsolicited emails
It’s also OK to send messages to people whose data you’ve received
during negotiations for a sale. What constitutes “negotiations for a sale”
is open to interpretation, but typically the recipient needs to have had
some clear communication with you about your products or services –
just browsing your website is not enough.
Opt-out, or opt-in?
In order to comply with the regulations of multiple target countries, the
safest option is to only send marketing emails to people who have
actively opted in to receive communications from you – rather than those
who just didn’t opt-out. This can take the form of a written request for
email marketing communications, or perhaps by actively selecting to
opt-in when completing a form.
That being said, in all of the EU recommendations and in the
comparatively lax US regulations, soft opt-ins are completely acceptable.
For these to be compliant, you need to make sure you always provide the
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Third party data
Where you have purchased data from a third party supplier for the
purposes of marketing emails, the best case scenario is that the potential
recipients have actively opted-in to receiving information from a third
party, but this is not always the case – check the specifics with your data
supplier. Rules about sending to this data vary considerably
internationally, but the safest route is to not use this data.
In the UK for example, it would be considered a breach of the Privacy and
Electronic Communications Regulations to send an email to a
person who had not either consented to receiving emails from, or
entered into negotiations for a sale with, your business – whether or not
they had consented to receive marketing from a third party.
Transparency
Whichever country you intend to send to, it should be clear to the
recipient exactly who the email is from – this is the minimum
requirement for the UK and EU. For US sends, there are additional
requirements that it would be beneficial to adopt across the board.
These include (but are not limited to), making it clear to the recipient
what the email is regarding from the subject line, making it clear that the
email is an advertisement or solicitation, and not engaging in fraudulent
sending methods, such as generating multiple sender addresses.
Disclosure
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Right to opt-out
All marketing emails should include an option to unsubscribe,
irrespective of country. This should be clear and easy to find, and the
unsubscribe process should be quick and straightforward. Whilst it might
be tempting to hide your unsubscribe link so you don’t lose people from
your contact list, doing so means that you’re going to keep wasting time
and effort emailing people who aren’t interested, and you risk irritating
and alienating your customer base.
If a recipient chooses to unsubscribe, you need to comply in a timely
fashion – when you’re using Intilery’s email client this happens
automatically, so you don’t even need to think about it. It is considered
best practice to suppress, rather than delete, the email address, so that
the recipient is not re-subscribed in the future without their consent.
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