ICO updated guidance on electronic marketing, consent and the “soft opt-in” exemption

The Privacy and Electronic Communications Regulations 2003 (“PECR”) regulate how and when an organisation can undertake direct marketing using electronic mail.

Generally, you can only send direct marketing by electronic mail if you have consent from the receiver to do so. However, there is an exception to this rule, deemed “soft opt-in”, which we will explore in more detail below.

What are the PECR rules on marketing by electronic mail?

PECR states that you can only send direct marketing messages by electronic mail if you have consent or you can meet the requirements for “soft opt-in”. This rule only applies to communications being sent to individuals (including sole traders and certain partnerships), not to corporate entities.

Electronic mail includes email, text messages, video and picture messages, voicemails, in-app messages and direct messages over social media – the definition is deliberately broad to cover any new forms of electronic mail. However, you should remember that the rules only apply to marketing communications, so electronic mail sent for administrative or customer service purposes, for example, will not be bound by these restrictions.

You should also be aware that an organisation’s obligations under PECR are not in lieu of its obligations under the UK GDPR and Data Protection Act 2018. Instead, PECR is designed to work in tandem with them.

What is the “soft opt-in” exemption?

The “soft opt-in” exemption allows organisations to send direct marketing communications via electronic mail to individuals without having their explicit consent to do so.
In order for the “soft opt-in” to apply, you must be able to meet all of the following requirements:

• you collected the subscriber’s 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 or services;
• you gave them a clear, simple, free of charge way to opt-out of your marketing when you collected their details; and
• you give them a clear, simple, free of charge way to opt-out of you marketing in each message you send to them.

The soft opt-in exemption can only be used to send marketing communications about your products and services – it cannot be used to send information about third party products or for other reasons, such as fundraising or campaigning. This would require consent.

What about bought-in client contact lists?

It is common for marketing organisations to sale, rent or licence marketing lists – but can these be used to send direct marketing by electronic mail?

It is possible for you to use a list complied by a third party to send direct marketing by electronic mail. However, the people on it must have given their consent to receive such marketing from you.

You should check that any consent is valid and actually covers you specifically – consider asking the following questions:

• What were people told?
• What did they consent to?
• Were you named on the consent request?
• When and how did they consent?
• Did they have a choice to consent?
• Is there a record of the consent?

The “soft opt-in” does not apply to bought-in marketing lists as part of the criteria for the “soft opt-in” exemption to apply is that you must collect the contact details directly from the person you want to send marketing to during the course or negotiation of a sale of your products or services.

For more information, please contact a member of our Commercial Team.