Email newsJohn Lewis Partnership recently lost a court case against an individual who successfully claimed that they had wrongly added him to their email marketing lists. The rules regarding who you can and can’t email as part of your marketing activity can already be complex, and this case could lead many companies to revise their email marketing practices.

What are the rules on Email Marketing?

In the UK, Email Marketing is governed by the Privacy and Electronic Communications Regulations 2003 – a Directive from the European Union which applies to all member countries. Very simply, the Directive enables you to:
  • Email your existing customers, using an address they have given you as part of your dealings with them as a customer (unless they have expressly opted out from your marketing).
  • You can also Email non-customers if you were given their email address “in the course of a sale or negotiations for the sale of a product or service” from you. To do this, you must give them an easy opportunity to opt-out of marketing at the point you capture the email address (such as a tick-box to opt out).
  • All recipients – be they customers or not – must be given a clear and easy means of opting out of further communications. Preferably, this should be a one-click ‘unsubscribe’ link but as long as the process is simple, and opt-out requests are processed correctly, you will be compliant.

What were the specifics of the case?

A prospective Waitrose customer, Roddy Mansfield wanted to know if he could order online and receive local delivery. He couldn’t find out without registering on the Waitrose website, for which he had to use his email address as a login. Waitrose therefore had his email address, which they passed on to their parent company John Lewis.
Mr Mansfield then started to receive marketing emails from John Lewis. In court, he argued that he had not opted-in to receive emails from either Waitrose or John Lewis, and also that by checking if online delivery was available to him, he was not “in the course of a sale or negotiations for the sale of a product or service” and John Lewis therefore had no right to use his email address for marketing purposes.
The court found in his favour and ordered John Lewis to pay damages. They also dismissed John Lewis’s counter-argument that during the registration  process, Mr Mansfield opted in to marketing by not unticking a pre-ticked box (a process known as ‘soft opt-in’). The court ruled that prospective customers must positively opt-in to marketing communications (by ticking a box, as opposed to unticking a pre-ticked box).

How do you stay on the right side of the law?

If you carry out email marketing campaigns, or plan to do so in the near future, these simple steps should help you stay on the right side of the law:
  • Existing customers – If you have email addresses for your existing customers, you can assume that they are happy to receive marketing emails from you, unless they have specifically opted-out of email marketing. When you start emailing them, you must provide an easy way for them to opt-out (preferably a one-click unsubscribe link) and you must process opt-out requests within a reasonable time.
  • Previous enquirers and prospective customers – Following the John Lewis case, this is more of a grey area. If you’re not confident that you can prove that a prospective customer was actively negotiating towards a potential sale and would be happy to receive your emails, it is safest not to email them.
  • Other contacts – You are not permitted to add any other addresses in to your marketing database. If for example, you know the email address of someone you would like as a customer, you cannot simply add them to your list without their permission.
  • Third party email lists – It is still possible to send marketing emails to third party email lists. However, it’s important to know that the data is effectively rented – you only get to use it for a limited period and cannot simply add the names to your database afterwards. If you are offered a third party email list, check whether or not the list provider is a member of the DMA (Direct Marketing Association). DMA members work to a strict code of practice, which will help ensure compliance.
  • Systems and processes – Keeping your email list updated can be very complicated. However, by using proper email marketing software, such as Campaign Monitor or Mail Chimp, campaigns can be much easier to manage. Both are very affordable, and also manage opt-out requests instantly and automatically, ensuring that those customers will be excluded from future campaigns.

Compliance with the Privacy and Electronic Communications Regulations can never be guaranteed, but the above steps should help you to ensure that your email marketing is compliant. If you keep large customer databases, you may also benefit from Cyber Liability Insurance – for more information, call us on 01943 876631 or contact us through our website.