A large number of firms have been fined by the Information Commissioner’s Office (ICO) after breaching the requirements of the Privacy and Electronic Communications (EC Directive) Regulations 2003 regarding email and text marketing.

Essentially, emails, texts and recorded telephone messages that are intended to promote a firm’s products or services can only be sent to individuals who have explicitly opted in to receiving communications of this nature. This consent must have been obtained in advance – including an option within in the communication to opt out of future communications is not normally sufficient.

However, the law does allow firms to make use of ‘soft opt-ins’ when it comes to obtaining consent for this type of communication. This applies where the recipient’s details were obtained “in the course of the sale or negotiations for the sale of a product or service to that recipient.” The three conditions that apply to use of the soft opt-in are:

  • The product or service the individual has previously enquired about must be of a similar nature to the products and services now being marketed
  • At the time their contact details were collected, the individual must have been given the opportunity to opt out of marketing communications
  • All promotional materials must give the recipient the opportunity to opt out of receiving marketing communications in the future

The last of these requirements could be achieved by including an unsubscribe option within an email message, or by inviting the recipient to reply with STOP in a text message. It should be noted that merely giving the individual the chance to opt out in the first such communication is not sufficient, and the opt out opportunity must be prominently displayed in all subsequent electronic promotions.

The ICO has clarified that in order for the soft opt-in exemption to be used, the individual must either have purchased a similar product or service from the firm or have made a specific enquiry about a similar product or service. If an individual simply views details of a product or service via general ‘browsing’ but does not proceed to make a purchase or enquiry, then the soft opt-in requirements have not been satisfied, and separate consent would be required before this individual could be sent any electronic marketing.

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article