MEDIA AND MARKETING:HOW BUSINESSES can stay on the right side of the law when it comes to sending unsolicited e-mails to potential customers is now more clear with the introduction of new legislation.
The electronic privacy regulations, which transpose an EU directive into Irish law, revoke previous regulations that applied to unsolicited direct-marketing communications.
It is now legal for marketers to send an unsolicited e-mail once it reasonably appears to the sender that the recipient’s e-mail address is mainly used for their commercial activity and the subject of the e-mail relates to that commercial activity.
“There was always a grey area and a lack of clarity around the old regulations,” says Deirdre Kilroy, head of intellectual property and technology in law firm LK Shields.
“One thing that used to really frustrate people was if I gave out my business card or had my contact details on my website then I clearly wanted to be contacted. Strictly speaking, was that an opt-in or not? Marketers really struggled with the concept of not being able to contact people who were clearly putting themselves out there.”
Kilroy cautions that e-mail senders still have to take action if the recipient says they do not want to receive any more e-mails.
Data Protection Commissioner Billy Hawkes has made no secret of his disdain for unsolicited e-mail marketing, describing it as “one of the scourges of modern communications”.
According to a recent Marketing Institute survey of 400 business professionals, eight out of 10 respondents described e-mail as an important component of their marketing strategy.
The most cited objectives for marketers in implementing e-mail campaigns were maintaining customer relationships and building brand awareness.
The survey indicates that personalisation and segmentation are key to achieving results in e-mail marketing campaigns. Only a small number of the companies use advanced personalisation, such as matching content to customer profiles, to tailor the e-mails they send to each customer in their database.
The rules surrounding sending direct-marketing e-mails to private individuals are that the person can only be contacted by e-mail if the product or service is of a kind similar to the customer’s original purchase. When the customer’s e-mail address is gathered, the individual must be given the opportunity to object to receiving such e-mails.
In addition, each time a marketing message is sent, the customer must be given the right to object to the receipt of further messages. And opt-in consent from customers expires after 12 months unless it is renewed.
The EU directive has less positive implications for website owners, with a clampdown on the use of cookies.
Cookies are pieces of information that websites can place on a user’s computer and which can later be retrieved by the website so it can recognise the user or the machine.
A session cookie can be used during a visit to a website and then deleted when the user leaves. A persistent cookie is not deleted at the end of the session and can be used to recognise the user and specific information from session to session. Previously websites could use a privacy statement to tell visitors how cookies were being used and explain how they could “opt out” if they objected. The new rules add a much more stringent “opt-in” requirement.
Aileen O’Toole, managing director of internet consultants Amas, says the new rules mean websites must ask visitors for their consent to have persistent cookies as opposed to session cookies. “Consent is not required for cookies that are strictly necessary to facilitate a transaction requested by the user, such as storage of items in an online shopping cart, though such cookies must be deleted at the end of the session,” she says.
