Connecting By Email with Your Business Prospects

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February 29, 2012 by David Miller

Connecting By Email with Your Business Prospects

I was looking today into the law around permission based opt-ins for emails aimed at individuals acting in their personal capacity (i.e. broadly as ‘consumers’) and individuals acting in their business (“commercial” or “official”) capacity.

Some interesting observations emerged.

Perhaps I’m wrong (I’ve been so in the past and will doubtless be so again in the future) but it seems to me that there is widespead industry misunderstanding as regards email marketing opt-ins for consumers -v- businesses.

My view is that the law requires permission-based opt-in for consumer email marketing (and rightly so); but that for business to business, s.13 of the legislation below specifically provides a ‘carve-out’ (subject to 5 strict conditions) from the general prohibition that applies to emailing consumers without their prior opted-in consent.

My comments are in [square paragraphs] below.

Statutory Instrument No. 336 of 2011

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES)(PRIVACY AND ELECTRONIC COMMUNICATIONS) REGULATIONS 2011 (Prn. A11/1165)2 [336]

s.13.

(1) Subject to paragraph (2), a person shall not use or cause to be used any publicly available electronic communications service to send to a subscriber or user who is a natural person an unsolicited communication for the purpose of direct marketing by means of—

(c) electronic mail,

unless the person has been notified by that subscriber or user that he or she consents to the receipt of such a communication.

[So s.13(1) is the standard requirement to get permission-based opt-ins = good stuff]

(2) Notwithstanding paragraph (1) and subject to paragraph (4)….

[Good News!

S.13(2) is the CARVE-OUT from the prohibition on sending unsolicited emails, but only for commercial enterprises

(1) IF you’re sending to people in commerce,

(2) IF you’re in the same vertical,

(3) IF your email only relates to that vertical,

(4) IF you haven’t been asked not to email them before, AND

(5) you give them the usual unsubscribe options]

…the [prohibition on the[1]] use of electronic mail to send an unsolicited communication for the purpose of direct marketing to a natural person does not include an electronic mail to an email address that reasonably appears to the sender to be an email address used mainly by the subscriber or user in the context of their commercial or official activity and the unsolicited communication relates solely to that commercial or official activity [emphasis added]

(4) A person shall not use or cause to be used any publicly available electronic communications service to send an unsolicited communication for the purpose of direct marketing by means of electronic mail, to a subscriber or user other than a natural person, where the subscriber or user has notified the person that the subscriber or user does not consent to the receipt of such a communication.


[1] I’ve inserted the words [prohibition on the[1]] as they’re clearly missing from the poorly drafted legislation, bearing in mind that s.13(2) is a carve-out from s.13(1) [which is the prohibition without prior permission based consent]

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