New Rules on E-Mail & SMS Marketing
New rules introduced at the beginning of March 2003 are likely to have a significant impact on direct marketing by e-mail and SMS messaging.
The rules are contained in the new edition of the British Code of Advertising, Sales Promotion and Direct Marketing (published at the beginning of March 2003).
Under the revised code, "explicit consent" is required for marketing by e-mail or SMS text message by a marketer to a "consumer". The code does not define "explicit consent" but it is likely that this will be interpreted to mean that the marketer must give the consumer such information as is necessary to ensure that the consent of the consumer is absolutely clear what he or she is consenting to, and that the consumer "opts in" rather than merely being given the opportunity to elect to "opt out" of use of their personal details for such purposes. "Consumers" are defined very widely in the Code to include anyone who is likely to see the relevant marketing communication, whether in the course of business or not.
Marketers can however market "similar" goods and services to their existing customers without explicit consent so long as an opportunity to object to such further marketing is given on each occasion, i.e. the recipient is given the opportunity to opt out. Clearly, it will not necessarily be the case that all products and services which a business provides would be regarded as "similar" and this will need to be assessed on a case by case basis. It should also be remembered that this exception would not permit another group company or related business to market similar products without explicit consent.
The new rules do not have force of law. The Code sets out the rules administered by the Advertising Standards Authority (ASA) in the UK in relation to UK non-broadcast marketing communications. The Committee of Advertising Practice (CAP) which produced the Code has in fact jumped the gun as this particular code change has been made to reflect an EU Directive which does not need to be implemented in the UK until the end of October 2003.
In the meantime, arguably in many situations the existing UK law permits marketers to send unsolicited e-mails and text messages on an "opt out" basis. Businesses should however be wary of ignoring the provisions of the Code until such time as UK legislation catches up. Although a breach of the Code is not a criminal offence, a range of sanctions are available to the ASA and CAP and the adverse press coverage which often follows a ruling by them can be very damaging to a business.
This article was written by by Lynn Beaumont of Tods Murray LLP.
It is used here by permission.
Please read our disclaimer.