Email and SMS marketing is popular with small businesses because it can be a highly cost effective route to reaching new customers. 

However, the introduction of the Privacy and Electronic Communications Regulations in 2003 has had a large impact on the way businesses conduct email and SMS marketing campaigns. 

A new version of the Regulations came into force in May 2011.

There are major changes to the rules on cookies, which small business may be using on their websites or in their marketing emails. This article reminds small businesses what they need to adhere to when carrying out email and SMS marketing if they are to keep on the right side of the law.

Email and SMS Marketing

There are major changes to the rules on cookies, which small business may be using on their websites or in their marketing emails. This article reminds small businesses what they need to adhere to when carrying out email and SMS marketing if they are to keep on the right side of the law.

The legislation was designed to protect consumers and businesses from unsolicited email and mobile marketing, or Spam as it is more commonly termed.

The current legislation states that business to consumer (B2C) unsolicited marketing via e-mail, and mobile, will be permitted only if recipients have given prior consent or opted-in to receive information via these channels. 

For business to business (B2B) marketing to corporate subscribers (limited companies, PLCs, government organisations and the like), unsolicited e-mails and mobile marketing may be sent without opt-in consent; however, senders must offer each recipient a chance to opt out.

“It is sometimes difficult for small businesses to distinguish between corporate and individual subscribers”, says James Milligan, Legal and Public Affairs Adviser at The Direct Marketing Association. 

“Partnerships in England and Wales, as well as sole traders, are classified as individual subscribers and you cannot tell from a .com address what category of business it is. If in any doubt, small businesses should treat all recipients of unsolicited email or mobile marketing messages as individuals.”

Breaking the law is serious and could result in fines of up to £5,000, so its crucial to know what counts as consent and how to go about getting it.

Collecting Data

The regulations state that you have to obtain explicit permission from a consumer before you send them unsolicited marketing messages via email or mobile for the first time, requiring the need to write or phone them or get them to subscribe to such messages when they register on your website or complete a form in store in the first instance. 

Additionally, it is worth engaging with them when you collect their contact details to ask them how in the future they wish to receive unsolicited marketing communications from you.

The above conditions may differ depending on the products or service being sold. For example, Customer X may want to be contacted by email for car insurance, but by post for travel insurance. Understanding how consumers want to be contacted is as valuable as understanding what they want to be sold.

The legislation does allow businesses to send unsolicited marketing messages via email or mobile to existing customers provided all the following conditions are met. 

The conditions are:

1. Email or mobile marketing contact details should only be collected in the course of negotiations for, or the sale of, a product or service

2. The customer must be told at the point of data collection that the email and /or mobile marketing contact details provided will be used to send unsolicited marketing

3. The customer must be offered the opportunity to unsubscribe (say no) to receiving such messages at the point of data collection, or registration on a website

4. Any subsequent marketing messages must only relate to similar products and services from the businesses which originally collected the information. This means that if you are part of a group of businesses, other businesses which have a separate legal identity cannot use the information unless it is collected at the group, as opposed to the individual, business level.

Any form of electronic communication sent to an individual must always contain a clearly stated unsubscribe option, which is free for the recipient of the email / SMS. 

You will be evading the law if you continue to send unsolicited marketing communications via email and mobile to a consumer, once they have said no to receiving such communications from you. You should therefore maintain an in-house “do not market via email or mobile” list – so, if you buy data lists, you can check who not to market to via email or mobile.

Buying Data Lists

Acquiring new customers is never an easy task, and many businesses buy customer data from specialist data providers. This data provides you with details on individuals who might be interested in purchasing your product or service, and it usually includes contact information as well as lifestyle data - for example, what car a person has - so you can determine how likely this particular individual is to buy your product or service.

To ensure you have prospect data that adheres to the guidelines, check how the email and mobile contact details were collected, and if prior consent for contact by the individual via these channels was provided. 

Reputable data suppliers will be happy to provide you with a copy of the wording used on the data collection or registration form. There is no point, for example, spending £500 on customer email addresses and mobile numbers when none of the people on the list have opted-in to receive information via email or mobile; its a waste of your time and money.

Benefits of the Law

Its not all doom and gloom. Ultimately, the result of this email/mobile marketing legislation is that potential and existing consumers should almost certainly be more responsive as they have explicitly requested information from you. And, as the mediums continue to grow, there are suppliers including Royal Mail who have developed a myriad of cost-effective and easy-to-use tools that can help small businesses develop, run and analyse sophisticated email and mobile marketing campaigns.

So get to grips with this legislation and benefit from the rewards that email and mobile marketing can bring.

As long as you have explicit permission from everyone you email or send a mobile marketing message to, you can not go far wrong.