UK: Can I Send A "Cold" Commercial E-Mail Or Not?

Last Updated: 1 December 2003
Article by Andrew Woolley

The purpose of article is to set out the legal position we believe exists at present and until new regulations regarding e-commerce and email activity come into force on 11th December. We also take a look at those forthcoming regulations.

The new rules are being introduced to comply with the EU Privacy and Electronic Communications Directive. But there are already rules that prevail and those who are not experienced marketers may not appreciate that the Advertising Standards Authority rules apply to any email or e-commerce marketing activity. These rules are encapsulated in what is known as Committee of Advertising Practice Code (CAP Code) a link to which is here:

What are the rules?

There are two main sets of regulations that affect e-mails (I ignore for the purposes of this fact sheet the data Protection rules which are a whole additional subject and one that any e-marketers should make themselves aware of).

The present position is (very basically) that:

  • You can send a commercial e-mail to someone (consumer or a business) if you want, whether they have requested it or not.
  • You must be careful how you got their details to enable you to send it. (Did you comply with the data protection regulations – to download a relevant Fact Sheet visit
  • The CAP code does apply to you when sending such e-mails to a consumer if they contain (paraphrasing) an advert of some type (surely almost all do?). The CAP code bans such e-mails unless the person involved has consented to receive them.

I can hear you say: "Yes, thanks a lot! Can I send e-mails to prospects or not? Give us the normal Woolley & Co plain English answer."

The answer is yes you can if:

  • They’ve agreed you can OR
  • It does not contain an advert (NB why would you send an e-mail to somebody who hadn’t agreed you could unless it was an advert?) OR
  • It’s to a business (exercise caution here - how do you know whether they are a business?)

What happens after 11th December 2003?

  • You must get explicit consent before sending a commercial e-mail to an individual.
  • But you can continue to keep in touch with past customers
  • You must tell people if your website uses "cookies" and have a mechanism to remove them from use.
  • Explicit must mean "opt in" rather than "opt out" of getting marketing e-mails

Who’s a Consumer/individual?

This is very difficult to answer. I suppose it is sometimes clear that an e-mail address is a business one ( clearly seems to be). The advice from the CAP code people is that it might well not be ok to send a cold commercial e-mail to someone even at a work e-mail if you send it to them in their private capacity. I suppose we must interpret this as meaning if someone emails me the offer of a pen to use at home only it breaches the rules but if it’s for work the (same) e-mail doesn’t.

Perhaps worse is the definition of an "individual"--the aim was, presumably, to make it clear that limited companies are not individuals. But in the way this has been done, partnerships are classed as individuals and not businesses, so if you e-mail Woolley & Co (which is a partnership) that’s wrong but if you e-mail Andrew Woolley Ltd that is ok! You’ll guess that I’m not impressed by the state of the uncertainty.

What should you do?

The first thing to say is that we have to ask you to please remember that if (in the context of this Fact sheet) you are using:

  • online advertisements in "paid for" space, e.g. banner and pop-up advertisements
  • advertisements in commercial e-mails
  • sales promotions wherever they appear online (including in organisations’ websites or in e-mails)

(I’d have thought most cold e-mails would normally come within at least one of the latter two.)

Our suggestions are these:

  • Remember the CAP rules probably apply to you if you send e-mails in which you try to sell a thing or service (or just advertise it) to a consumer
  • Even if the CAP rules don’t apply, the new regulations from the DTI certainly will
  • The CAP rules might be a little more generous to you than those of the DTI -the latter will take precedence so take care!
  • You will almost certainly still be able to e-mail previous customers with details of similar things available etc
  • A customer, CAP says includes someone who has left their details even if they haven’t bought - that seems fair. It’s surely a form of consent to being marketed to.
  • Get a good privacy policy (initially these were designed to comply with data protection but in them put words to the effect of "I agree to receipt of e-mail and other communications for any purpose"). Have a clear method of showing that the person who you want to e-mail has consented to that policy. We can advise on how to do that.
  • Get consent - always. Then you can’t be in the wrong.
  • "Old" databases. These are causing a lot of angst. I refer to a situation where businesses have for some time sent, e.g. an e-zine to recipients who (under the "old" regulations") did not need to consent. What to do after the new regulations come into force? Some people are e-mailing everybody on their list asking them to re-signup and consent to being sent it (and other communications). On balance we think this might be being too careful - especially if there are clear means to "unsubscribe" on that which is sent. It might be appropriate to put a note in a forthcoming communication reminding people how to unsubscribe and suggesting that if they do not, you will take that as consent - it isn’t consent, we think, but it is hard to see much complaint being made. But, as always, when you are a business dealing with a consumer you are "there to be shot at".

Take care: breach of the new regs is a criminal offence and also you could be sued for any damages caused.

Finally, maybe I have missed something but none of us really want to spend our time and money sending e-zines, e-mails or any marketing communications to people who won’t read them anyway - do we?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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