The Privacy and Electronic Communications (EC Directive) Regulations 2003 came into force in the UK on 11th December 2003.
This legislation affects anyone using email or SMS marketing; there are several key points which you must observe in order to avoid being liable for a hefty fine.
A simple overview:
- If you have had no prior commercial relationship with a person you will have to obtain their permission to communicate with them by email or SMS text message.
- You cannot obtain this consent via sending an email or SMS message to ask for it, and the permission has to be actively and knowledgeably given – i.e. the user must tick a box or actively opt-in by performing a specific action.
- If you have had a previous trading relationship you may be able to communicate with them about a similar product or service. It’s that little word similar that gets the lawyers salivating. Because English law is largely determined by case law and precedent it will be some time before the definition of similar is determined, very expensively, in court.
- You must clearly identify the sender of the message.
- You must provide a valid reply address.
- You must make it easy for recipients to unsubscribe from future communications.
Penalties
Those who fail to follow these regulations face prosecution and could be fined up to £5,000 in a Magistrates Court or an unlimited fine if the prosecution is pursued in the Crown Court.
In late 2009 the Information Commissioner’s Office was granted to ability to impose fines of up to £500,000 for serious breaches of the data protection principles.
Useful Links
The Information Commissioner
Responsible for enforcing the electronic communications regulations in the UK.
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From the Privacy and Electronic Communications (EC Directive) Regulations 2003.
Use of electronic mail for direct marketing purposes
(1) This regulation applies to the transmission of unsolicited communications by means of electronic mail to individual subscribers.
(2) Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.
(3) A person may send or instigate the sending of electronic mail for the purposes of direct
marketing where—
(a) that person has obtained the contact details of the recipient of that electronic mail in the
course of the sale or negotiations for the sale of a product or service to that recipient;
(b) the direct marketing is in respect of that person’s similar products and services only; and
(c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication