Email marketing answers

anonymous author

Anonymous asked this on February 9, 2013

Are legal? First time buyers can’t opt out of email marketing when their address is collected. They must to go to My Account. loading

Are legal? First time buyers can't opt out of email marketing when their address is collected. They must to go to My Account.

4 answers so far...

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  1. Dave Chaffey, Consultant said at 10:00 on February 11, 2013

    That’s an interesting question. The answer is Yes!

    I’m not a legal person, but believe that fits within the UK Privacy and Electronic Communications (EC Directive) Regulations 2003 and what I have been advising email marketers since then!

    Whenever I review a newsletter sign-up, for example during account creation for sale or in a B2B lead-generation context I always check to see whether the box is pre-ticked since this will help list growth.

    Pre-ticking the email opt-in is legal in some European countries where the law permits this during course of sale or negotiation for sale (i.e. with prospects). In the UK, both Amazon and Tesco take advantage of this.

    We have more details on the law in this post on Email Preference centres:

  2. Phil Wardell, Digital Marketing Manager said at 15:01 on February 12, 2013

    Thanks for the reply.

    I think that the issue is not that the box is pre-ticked, it’s that the option isn’t presented until after the data has been collected.

    I’m no lawyer either but it seems to me that they aren’t adhering to point (c) of the soft opt-in rule for collection during a the course of a sale. It says that the recipient must be given the means of refusing marketing “at the time that the details were initially collected”.

    On they don’t give a method of opting out at the time of collection. You can only opt out after the information has been collected by navigating to the Preference Centre in My Account.

    Many companies have an opt out check box as part of the checkout when collecting an email address for the first time. It seems likely that the capture of email marketing permission (and hence revenue from email marketing) would go up significantly if they only had to offer the ability to opt out through a preference center in My Account as do.

    • Dave Chaffey, Consultant said at 19:35 on February 12, 2013

      That’s an interesting thought Phil – technically they do seem to be in breach of part of point “c”,

      (c)the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.

      That’s usually applied to the essential requirement for opt-out in every email.

      I’ve been covering their preference centre for 6+ years though so it must be fine – someone must have flagged it with the Information Commissioner. I recall Tesco uses a similar approach.

      They could argue that the emails related to Basket abandon are “Service Emails” and not related to “Direct marketing”, perhaps that’s where they get the “wriggle room”, although they would have to be clearly not-promotional which I doubt.

      As Duncan Smith who commented on my original post (and is a specialist trainer/consultant on privacy I met when I was a CIM trainer years ago) says:

      “Notice that this is a very well-crafted ‘assumption of consent’ which flies ‘close to the wind’ with regard to the b2c opt-in requirement under PECR 2011. Make sure you make money whilst complying with the law!

  3. Phil Wardell, Digital Marketing Manager said at 21:35 on February 12, 2013

    Hi Dave,

    Yes I agree that there wouldn’t be any problem with customer services themed abandoned basket emails.  However, the options they pre-tick in the preference centre are all about marketing emails which goes against soft opt-in point (c). 

    Regarding the comments from Duncan Smith, he seems to be referring to what happens when you just register, rather than during a purchase. They are both registering in many ways but I think there is an important difference. 

    When just registering you are giving over information but it isn’t part of a purchase. could argue that the only reason for giving them your information is to be contacted, and it is up to the visitor to go to the preference centre and change the way they are if they want to.

    However, I think this is different during a purchase. A customer has only agreed to purchase and point (c) of the soft opt in requires that they are given the ability to opt out at the time of collection and Amazon aren’t doing that.

    Sorry if I seem to be labouring a point but I’m really intrigued to know if this is legal. It appears to be different to best practise advice and goes against what almost every website in the UK is doing. It will be giving Amazon a significantly higher percentage of email addresses that they can market to because if there is a box to be checked then a percentage will do so.

    Amazon have always been a great example of best practice which is why this has caught my attention.

    If this is currently legal then it is a great steer for the rest of us because it could mean a significant increase in revenue for most UK websites. 

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