Considerations for email marketing

What is email marketing?

Email marketing is a direct marketing method (or ‘direct marketing channel’) that involves sending commercial messages to customers using email.

Under the Data Protection Act 2018 (DPA), direct marketing is any form of communication of advertising or marketing material which is directed to particular individuals.

Email marketing allows businesses to email customers on their contact list about things like products, sales, and updates. Examples of marketing emails include:

• promotional emails - these are typically used as part of an email marketing campaign to promote special offers, new products and the business’ brand. They will typically include a clear call to action (or ‘CTA’) for the recipient to take (eg using a discount code to make a purchase or visiting a particular page on your website)

• informational emails - these include newsletters and announcements. Newsletters are typically sent at regular intervals (eg weekly or monthly) to share information that brings value to your customers (eg insights and tips). Announcements are typically sent to inform your customers of a business announcement (eg a new product or changes to your services)

• re-engagement emails - these are typically used to reconnect with customers who have subscribed to receiving marketing emails, but who have been inactive

Why should I send marketing emails?

An important aspect of running a business is promoting your goods and/or services. Sending marketing emails allows businesses to stay in touch with their customers, which is an essential part of growing and managing a business.

There are many benefits of sending marketing emails, including:

• raising brand awareness - by regularly communicating with your customers you stay in their minds. Due to the scalability of email marketing, you can send personalised marketing emails to a large number of recipients while remaining cost-effective

• improving customer and business outreach - compared to other forms of marketing (eg ads or social media updates), marketing emails are more likely to be seen by your customers, who are free to read your email in their own time and at their own convenience

• selling your products and services - informing your existing customers about your products and services can help you drive sales and boost conversions. This is especially true for any new products you launch or services you offer

• encouraging customer loyalty - personalised and relevant marketing emails that resonate with your customers help build customer loyalty

However, when sending business emails it is crucial to comply with all relevant direct marketing laws and regulations. Failure to comply may not only hurt your business’ goodwill and reputation, but it may also subject you to fines from the Information Commissioner’s Office (ICO).

What should I consider when sending marketing emails?

When sending marketing emails businesses should consider the following to remain compliant with direct marketing laws and regulations. 

1. You can contact any existing customers

As a general rule, you should not contact any consumers directly by email, phone, text or post unless they have given permission (ie they have ‘opted-in’). However, the rules for existing customers are slightly different.

Under what is known as a ‘soft opt-in’, a consumer who recently purchased something from you and did not opt-out of receiving marketing messages is considered to be happy to receive marketing emails. This is the case even if they haven't specifically consented to receive marketing emails from you. As a result, you can send marketing emails to your existing customers if:

• you obtained their contact details by selling them your products and/or services (or by negotiating such a sale, even if the sale is not yet complete)

• your marketing email relates to products and/or services similar to those previously bought by (or negotiated with) the customer

• you provided all relevant privacy information (eg what type of information you collect and how you use this information) when first contacting the customer (typically in the form of a Privacy policy)

• you comply with your data protection obligations when processing (eg handling) their personal data (eg name and address)

• you obtained consent from a parent (or legal guardian) if the customer is under the age of 13 (children under 13 are considered unable to provide consent and, therefore, an adult needs to provide such consent on their behalf), and

• you include an unsubscribe link (see point 3 for more information)

2. You need consent for new customers

If point 1 doesn’t apply, you will need to gain consent from those who have not specifically consented to receive marketing emails from you. You will need consent from a parent (or legal guardian) if the intended recipient of the email is under 13. 
The UK General Data Protection Regulation (GDPR) and DPA set out how individuals can consent to personal data processing. For consent to marketing emails to be valid, it must be:

• freely given - this means that the customer must be given a genuine choice when providing consent and their decision to consent should generally be disconnected from other terms and conditions (eg access to a service should not be conditional upon consent being given)

• specific and informed - this means that it must be very clear to customers what they are consenting to (eg email marketing from your business)

• through ‘affirmative action’ - this means that the customer must actively take a step to give you their consent (eg ticking a box which confirms they are giving consent - having pre-ticked opt-in boxes does not count as affirmative action), and 

• withdrawable - this means that the customer can withdraw their consent at any time and they know how to do this (for more information, see point 3)

You can only use a customer’s personal data for the purposes they consented to. For example, if they consented to email marketing only, you can only contact them through email and cannot call them for marketing purposes.

In order to comply with your data protection obligations, you must provide privacy information when you first contact customers. It is also good practice to always include a link to your Privacy policy and Website terms and conditions at the bottom of any marketing emails you send.

For more information, read Consent for GDPR.

3. Always provide a way to unsubscribe

Regardless of who you send your marketing emails to, you must always provide recipients with a method of withdrawing their consent at any time. You should make withdrawing consent as easy as possible. For example, by including an unsubscribe link or button, a contact number (also known as an ‘opt-out’ phone number), or a contact email address. For more information, see the ICO’s guidance.

4. Consider your business customers

Points 1 to 3 above only apply to sending marketing emails to private individuals. If you’re marketing your products and/or services to businesses (eg companies and limited liability partnerships (LLPs)), the rules are less stringent.

When marketing to businesses you must identify your business and provide a valid address for businesses to use to opt-out (or otherwise unsubscribe). You should also maintain a ‘do not email’ (or ‘do not contact’) list of any businesses that have opted-out, unsubscribed or objected to your email marketing.

Bear in mind that if you are sending marketing emails to a business’ employee’s personal corporate email address (eg john.smith@rocketlawyer.co.uk) you will need to consider and comply with data protection rules.

Note that certain businesses (eg sole traders and some partnerships) are treated as individuals for direct marketing purposes and you can only email them if they have consented.

For more information, see the ICO’s guidance.

What about customer service messages?

The points outlined above relate to marketing emails. Any routine customer service messages are not considered direct marketing messages and, therefore, points 1 to 4 do not apply.

Routine customer service messages are factual messages to customers about your products and/or services, about a current contract or a past purchase. Examples include information about product safety, service interruptions or delivery arrangements.

Any general branding, logos or straplines contained in such messages are not counted as marketing. However, if your customer service messages include significant promotional material (eg any information designed to encourage customers to buy products and/or services), the marketing rules apply and must be followed.

For more information, read Marketing and the law and the ICO’s guidance. If you have any questions or concerns about sending marketing emails, Ask a lawyer.