E Mail Marketing And The Law 2009

E-mail Marketing and the Law
© Blue Zebra Associates Ltd 2008 - 2009

Agenda
The ‘new’ legal framework
Practice not theory
Pulling it all together.
© Blue Zebra Associates Ltd 2008

The Legal Framework

The Need for Tightening Regulations
Email Identified as Spam
Source: MessageLabs - September 2009

It’s Nothing Personal…
Source: Kapersky Lab (March 2009)

Virus in Email
Source: MessageLabs (October 2006)
Source: MessageLabs - September 2009

Phishing
Source: MessageLabs - March 2009

The Legal Framework
The Privacy & Electronic Communications

Directive 2002/58/EC
Adopted 12th July 2002
Supplements Directive 95/46/EC - Data Protection Act
Law from 11th December 2003.

Companies Act 1985

Sections 349 & 351 Updated 1st January 2007

Privacy & Electronic Communications Regulations
Consultation period
Final form delayed until 18th Sept
Effective date 11th December 2003
Guidelines published late November 2003.

The Legal Framework

The Legal Framework
ELECTRONIC COMMUNICATIONS
The Privacy and Electronic Communications
(EC Directive) Regulations 2003
11th December 2003

What the Regulations Say
Direct Marketing Definition
Solicited / Unsolicited - Difference
What is consent
For the time being
Valid Address for Unsubscribe
Similar Products and Services
Clear Identity of Sender
Business to Business
Legacy databases

Direct Marketing Definition
“the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals”
Wide range of activities - Promotion of organisation aims / ideals - Charity appeal for funds - Political parties call to action

Solicited v Unsolicited
Solicited Message is one that you have invited
Unsolicited Message is one that you consent to receive
NOT failed to object to receive

Consent Means Ticking a Box?
“any freely given specific and INFORMED indication of his wishes by which the data subject signifies his agreement”
Click on an icon
Send an email
Subscribe
Unambiguous

For the Time Being
Consent is given “for the time being”
Implies transient nature
Can object “for the time being”
Does not time out

Valid Address for Unsubscribe
Email address or an icon
Phone number is not an option (not even free-phone)

Similar Products and Services
Reasonable expectation
Opt-outs
Information Commissioner focussing on failures to comply with opt-out requests.

Clear Identity of Sender
Must be in header
Must not disguise who you are
Includes SMS messages to small screens

Individual Subscribers
Corporate Subscribers
Opt-out not extended to Corporate Subscribers
Data Protection Act means if you know their name you should obey opt-out requests

Legacy Databases (11th Dec 2003)
Compiled in accordance with old laws
Used recentlyCAN CARRY ON, BUT….
Opt-out with every message
Unless compiled on Opt-in basis then only need address with every message.

Enforcement
Information Commissioner - Same as the Data Protection Act
Penalties
Damages
Enforcement Notice
Due Diligence Defence

Legal Summary – Rules
1st New RuleThis rule applies to all marketing messages sent by electronic mail, regardless of who the recipient is.

The sender must not conceal their identity AND
The sender must provide a valid address for Opt-out

2nd New RuleThis rule only applies to unsolicited marketing messages sent by electronic mail to individual subscribers. The strict Opt-in rule can be relaxed if 3 criteria are satisfied.

The recipients address was collected in the course of a sale or negotiation for sale
The sender only sends messages relating to similar products and services AND
When address collected the recipient was given the opportunity to Opt-out.

Legal Summary – New Rules
Companies Act 1985Email’s are treated as per letter headed paper

Company Name must be displayed on Emails
Company Registration number must be displayed
Registered Office Address must be displayed
If VAT registered the number must be displayed.

Further reading
www.informationcommissioner.gov.uk
www.dti.gov.uk

Legal Framework Recap
Regulations in place now
Opt-ins
Soft Opt-ins
For the time being
Legacy Database
Due Diligence

Practice not Theory

Business to Consumer
Always applies
Opt-in almost exclusively
Existing Customers - Similar products and services

Can be done without permission
Other regulations apply
What is a business?
What does best practice look like?

Unsubscribe
Legal examples: - To no longer receive this newsletter, please send us a blank e-mail - If you do not wish to receive further e- mails from Blue Zebra, please feel free to unsubscribe.
Non compliant: - To be removed from the mailing list please call 0800 233700

You are in breach of regulations if…
Identity of Sender is disguised or concealed
No valid address for opt-out request
Recipient has opted out
Applies to B2B and B2C

Opt in examples
Best practice: - By submitting this registration form, you will be indicating your consent to receiving e-mail marketing messages from us unless you have indicated an objection to receiving such messages by ticking the above box
Not acceptable: - if you do not wish to receive emails from ourselves or our partners please tick the box []

Subscribers
Individual Subscribers - Individuals - Sole Traders - Partnerships
Corporate Subscribers - Limited companies - PLC’s - Government Dept’s - Local Authorities - LLP’s - Clubs - Charities

What is a personal e-mail address?
Assumptions: - AOL - Hotmail - BT / BTopenworld - Yahoo etc
www.blue-zebra.com

Partnerships
Law firms
Accountants
Surveyors
Architects etc…
Can send to - Scottish Partnerships - LLP’s

Importance of Data Quality
Recording of key data
Need for accurate data
How do you keep data accurate
Where do you record opt-in?
Opt-out (suppressed not removed)

Email Policies
Written into company handbook
Penalties for breach
Part of disciplinary procedures
Cover all outbound bulk electronic communications
Clearly indicate what is/is not allowed in e-mail and text messaging.

Processes
For complaint handling
For opt-in recording
For opt-out recording
For guaranteeing opt-outs do not get mail

What about Personal Contact Stores?
Outlook
Lotus Notes
PDA
Mobile phone etc…

Education
Program for all staff
Particular need for Marketing and Sales Staff
Programme for new recruits.

Opt-in
What is it
What do I need to record?
I have her business card.

Sending Emails Overseas
Need to apply UK rules
Be aware that other EU countries may have implemented different interpretations
CAN-SPAM Act of 2003.
Controlling the Assault of Non-Solicited Pornography and Marketing
www.spamlaws.com

Putting it all together

The Promotional Mix

Social Media
Discussion Forums
Wiki’s (Open, Organisation, Internal, Publication)
PodCasts
Blogs
Micro Blogging (Twitter)
RSS Publishing (Really Simple Syndication)
Social Networking (Facebook, Linked-in etc)
Collaboration Spaces (Trip Advisor)
Tagging / Sharing (Delicious)
Sharing (Google Doc’s, SlideShare, Flikr)
Mash-ups (Google Maps)
Virtual Worlds (SecondLife)

Decision Tree

Possible actions
Need to work on Data Quality
Processes
Staff education
Database
Improve marketing to reduce opt-outs.

Methodology
Review Processes: - Data capture - Opt-out - Training - Data Quality - Data stores
Identify actions needed
Identify opportunities to become more “customer focussed”.

eNewsletter Example
Sent 341
Opened 189
Click thrus 64
Leads 2.
www.constantcontact.com

Summary
Failure to comply is breaking the law
Opportunity to improve marketing
Need to work on data quality
Processes
Staff education
Central Database

Blue Zebra Associates Ltd