December 14, 2012 by David Miller
A recent email marketing talk that I attended this year talked about the importance of obtaining permission-based opt-ins for any email marketing that you or your business does. This is just common sense at this stage, as any business that emails individual consumers without having previously obtained their written consent to write an email to them, is just plain way behind the times (and breaking Irish data protection laws to boot).
What about a B2B Company Selling Hotel Widgets, looking to market its services to Hoteliers?
One of the follow-up questions though was around B2B email marketing, i.e. if an Irish business that sells hotel widgets to hotels (for example) wants to to market its widget services to a group of Irish hoteliers: in this case, did the prohibition on email marketing apply in the absence of previously received opt-in permission/consent?
There was some potential for confusion here, as the legislation could appear to imply that the widget company had to have prior opt-in consents from hotels before it could send marketing collateral by email to its prospective client base. [Of course, when you stop to think about it, there’s no way that this could be the case, as it would undermine freedom of commercial communications between sellers and buyers of commercial services].
The answer to this question can be found in the European Communities (Electronic Communications Networks And Services) (Privacy And Electronic Communications) Regulations 2011 (Prn. A11/1165)2 ) , Statutory Instrument, S.I. No. 336 Of 2011
S.13(1) is the standard requirement to get permission-based opt-ins for ‘natural persons’ i.e. normal individual people, who aren’t already your customers, and to whom you’d like to email market to. So, unless you have these people’s prior written opt-in consent, then you can’t email market to them.
(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.
s.13(2) B2B Same Vertical Carve-Out/Exception
S.13(2) is the CARVE-OUT from the B2B bar on sending emails in the same vertical
(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
This is what the law says:
(2) Notwithstanding paragraph (1) and subject to paragraph (4), the [prohibition on the] 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.
(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.
 I’ve inserted the words [prohibition on the] 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]