Clampdown rocks email marketing

The data watchdog has opened up a can of worms by implying email marketers should receive “explicit consent” before embarking on campaigns or risk fines of up to £500,000 in a new clampdown on electronic marketing.
The warning comes in new guidance issued by the Information Commissioner’s Office about existing Privacy & Electronic Communications Regulations (PECR), which were updated last year and at the same time came under the watchdog’s remit.
The legislation – the UK’s interpretation of the EU e-privacy directive – was dubbed the “cookie law” as its main focus was the tightening up of online marketing and data capture.
However, the ICO is now taking a tougher stance on all forms of electronic marketing, including email, phone calls and texts, warning consent for electronic direct marketing must be tighter than for the likes of direct mail.
It is not known what has sparked the move, especially given the ICO’s “softy, softly” approach to enforcing the laws on the use of cookies. But it will no doubt raise more than a few eyebrows in the DM industry – which has a good record on compliance – and spark fears of an “opt-in” system via the back door.
In the guidance, the ICO said organisations conducting direct marketing via email to consumers would not be able to rely on that consent to then conduct direct marketing over the phone or via text message.
It states: “Organisations cannot make an automated call unless the person has consented to receiving automated calls, cannot send a text unless they have consented to receive texts, and so on. Consent to receive phone calls cannot be extended to cover texts or emails, and vice versa. And a general statement of consent to receive marketing might be valid for [direct] mail marketing, but will not cover calls or texts.”
The ICO said that companies seeking to rely on implied consent to justify direct marketing to individuals still need to ensure that that consent has been “freely given, specific and informed, and must still involve a positive action indicating agreement”.
The watchdog recommends that companies engaging in direct marketing to consumers “use opt-in boxes in order to obtain explicit consent” after concluding that the process for obtaining implied consent “is likely to require organisations to take similar steps to explicit consent”.
The ICO said that organisations should maintain “clear records” of the consent they obtain for direct marketing activities so as to present the evidence if challenged on their compliance in the event of a complaint.

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