What are the rules on direct marketing using electronic mail?

In detail

• Who is responsible for complying with the rules on sending marketing by electronic mail?
• What are the rules on sending marketing by electronic mail?
• What does “solicited” and “unsolicited” mean?
• What is consent?
• What information do we need to provide when sending marketing by electronic mail?

Who is responsible for complying with the rules on sending marketing by electronic mail?

In general the PECR rules apply to anyone that wishes to send unsolicited messages by electronic mail for the purposes of direct marketing.

It is the ‘sender’ or the ‘instigator’ of the message who has responsibility for complying with the rules. PECR do not define the term ‘instigator’. However, you are likely to be instigating if you encourage, incite, incentivise or ask someone else to send electronic mail containing your direct marketing message. 

For example, asking someone else to send your electronic mail marketing for you may mean you are the instigator and the party who is sending the marketing is the sender. This can mean you both have responsibility for complying with PECR. This may be different if you’re using a webmail provider or a marketing platform to send electronic mail on your behalf. In these cases, you may only have responsibility for the sending and the other party has no responsibility under PECR for it.

If you want to use someone else to send your electronic mail marketing, you should undertake appropriate checks to have confidence in their reliability from a compliance point of view. You should also have a written contract with them that sets out their responsibilities. If you’re using personal data, then you must have a contract with the organisation sending marketing on your behalf.

If your organisation is also a subscriber (ie named on the bill for the internet connection subscription or phone line) you must not allow others to use your phone line or internet connection to breach the marketing rules. If someone else is using your line or connection to send electronic mail marketing, you must make sure that these communications comply with PECR.

If you are considering asking your customers to send or forward your electronic mail marketing messages, see the section Can we ask people to send our electronic mail marketing? for more information.

What are the rules on sending marketing by electronic mail?

PECR says that you can only send direct marketing by electronic mail if:

• you have consent; or
• you can meet all of the requirements of the ‘soft opt-in’.

However, these rules only apply to individual subscribers (which includes sole traders and some types of partnership). Therefore, you can send electronic mail marketing to a corporate subscriber (eg a limited company) without needing to comply with the above requirements.

In general, you must have people’s consent to send them marketing by electronic mail. See the section What is consent? for further information.

However, there is an exception to this consent requirement. It is commonly known as the ‘soft opt-in’ (although PECR don’t use this terminology). Regulation 22(3) says:

“A person may send or instigate the sending of electronic mail for the purposes of direct marketing where—

(a) that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient;

(b) the direct marketing is in respect of that person’s similar products and services only; and

(c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.”

For the soft opt-in to apply, you must be able to meet all of its requirements.

For example, currently you can use the soft opt-in if all of the following apply:

	You want to send marketing by electronic mail to individual subscribers (including sole traders and some types of partnerships).
	You collected their contact details directly from them.
	You collected their details during a sale, or negotiations for a sale, of your products or services.
	You want to use their details to send them marketing about your similar products and services.
	You gave them a clear, simple way to opt-out, or to say no to your marketing, when you collected their details.
	You give them a clear, simple way to opt-out, or change their mind about your marketing, in each message you send.

However, currently the soft opt in won’t apply if:

	You want to send direct marketing by methods other than electronic mail (eg using phone calls or post).
	You didn’t collect the contact details directly from the person you want to send the marketing to.
	You didn’t collect their details during a sale, or negotiation for a sale, of your products and services.
	You collected their contact details as part of your fundraising or campaigning.
	You want to use their contact details to send someone else’s marketing.
	You want to use their contact details to send messages about fundraising or campaigning.
	You didn’t give them a clear, simple way to opt-out, or say no to your marketing, when you collected their details.
	You don’t give them a clear, simple way to opt-out, or change their mind about your marketing, in each message you send.

See the section How do we use the soft opt-in to send marketing by electronic mail? for more information.

Whichever you are using, you must also provide certain information when you send marketing by electronic mail. This applies to individual and corporate subscribers. See the section What information do we need to provide when sending marketing by electronic mail? for further information.

What does “solicited” and “unsolicited” mean?

Some of the rules on electronic mail marketing only apply to “unsolicited” messages.

Solicited

Electronic mail marketing is solicited if someone specifically asks you to email them with marketing information. You can send someone particular promotional information if they ask you to. In this case, some of the PECR rules don’t apply (eg you don’t need consent or the soft opt-in to send the message).

Unsolicited

Unsolicited means any marketing message that someone hasn’t specifically requested. Consenting to, or not opting out of, your general electronic mail marketing doesn’t mean that the marketing is solicited. It still counts as “unsolicited” for the purposes of PECR. However, this doesn’t necessarily stop you from sending the message. You just need to comply with PECR's rules on electronic mail as normal.

You can send unsolicited direct marketing that someone has generally “opted in” or consented to receive. An opt-in means that they are happy to receive further marketing. It’s likely that this unsolicited marketing is lawful. 

Likewise, you can send unsolicited direct marketing if someone didn’t take the opportunity you gave them to opt-out (as part of the ‘soft opt-in’). In such cases, not opting out is likely to mean they are happy to receive your marketing. Therefore, it is likely to mean that the unsolicited marketing is lawful.

The information you must provide when sending electronic mail marketing still applies whether the electronic mail marketing is unsolicited or solicited. See the section What information do we need to provide when sending marketing by electronic mail? for more information.

What is consent?

Often you may need consent to send electronic mail marketing. Sometimes, you may simply decide that you want to ask for consent for your electronic mail marketing instead of using the soft opt-in.

PECR takes its standard of consent from the UK GDPR, which says consent is:

“any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”

This means that if you are seeking consent for your electronic mail marketing messages:

• you must give people a free choice to consent so that they can refuse without detriment and you must keep the consent separate from other things such as terms and conditions (freely given);
• you must make it clear that the consent covers your electronic mail marketing messages and you must give your name in the consent request (specific and informed);
• you must have no doubt that they are consenting to your electronic mail marketing messages (unambiguous indication); and
• they must take a positive action to consent, so you must not use pre-ticked opt-in boxes, silence or inactivity (clear affirmative action).

You should keep a record of the consent (eg who, when, how) so that you can demonstrate that it is valid.

People can also withdraw consent and you must make it easy for people to do this. If someone withdraws their consent you can no longer send marketing by electronic mail to them. See the section Can people object to our electronic mail marketing? for further information.

What information do we need to provide when sending marketing by electronic mail?

When you send marketing by electronic mail to any type of subscriber you must:

• not disguise or hide your identity; and
• provide a valid contact address for people and businesses to opt-out or unsubscribe.

These rules apply regardless of whether the message is solicited or unsolicited.