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A recent (2014) legal ruling of a "Consumer-friendly -mail" resulted in John Lewis being ordered to pay damages. The ruling can apply to many businesses and organisations.

Can I Send Unsolicited Emails to Existing Clients?

Q: Can I send unsolicited emails to existing clients?
A: Only if they have consented to receiving emails. "Consented" is not just a matter of ticking an "opt-in" box, or not unticking a pre filled "opt-in" box.

In a recent case, the retail chain, John Lewis, was ordered to pay damages for breaching direct marketing laws. An individual registered his details (including email address) with John Lewis via the Waitrose website, and although he did not buy anything, he received direct marketing emails from John Lewis.

He argued that he hadn't consented to receive direct marketing and that John Lewis was in breach of the Privacy and Electronic Communications (EC Directive) Regulations 2003. The Court upheld his claim.

John Lewis unsuccessfully argued that the individual was caught by a "soft opt-in" exception, essentially that a "pre-ticked" consent box amounted to an opportunity to "opt out", and by not doing so, he had consented.

The "soft opt-in" is a limited exception which makes it easier for organisations to obtain the consent to direct market to existing customers. The Information Commissionaire's Office states that organisations can send marketing texts/emails to an individual where

  1. they obtained the contact details in the course of a sale (or negotiations for a sale) of a product/service
  2. they are marketing their own similar products/services, and
  3. they gave them a simple opportunity to opt out of the marketing, both when collecting the details and in every message thereafter.

The Issue was whether registering with John Lewis's site constituted a "negotiation for a sale of a product or service". The court decided it did not. Effectively this means that retailers cannot pre-tick any box relating to direct marketing. This is only acceptable if the "soft opt-in" exception applies. If it doesn't, then express consent is required.

The concern for retailers is that one successful claim against them could lead to many more similar claims.

Privacy and Electronic Communications (EC Directive) Regulations 2003

One of the key points of this legislation is that it is unlawful to send someone direct marketing who has not specifically granted permission (via an opt-in agreement) unless there is a previous relationship between the parties. Organisations cannot merely add people's details to their marketing database and offer an opt out after they have started sending direct marketing. For this reason the regulations offer more consumer protection from direct marketing.

HCI Data Ltd is a member of the Federation of Small Businesses
Last Updated: Monday, 04-Feb-2019
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