Spam and Cold Commercial emails

There is still a lot of confusion about when a business can email people and when they can’t. Let’s start simply: if someone agrees you can email them, you can. Please remember that all the way through and if you don’t want to bother to learn all the detail, then just put a policy in place that you always get consent to be emailed.

There are various sets of rules that apply mainly the EU Privacy and Electronic Communications Directive. But there are already rules that prevail and those who are not experienced marketers may not appreciate that the Advertising Standards Authority rules apply to any email or e-commerce marketing activity. These rules are encapsulated in what is known as Committee of Advertising Practice Code (CAP Code) a link to which is here: http://www.cap.org.uk.

What are the rules?

There are two main sets of regulations that affect emails (I ignore for the purposes of this article the Data Protection rules which are a whole additional subject and one that any e-marketers should make themselves aware of). But you must always ensure you have obtained or collected the email details in a way which comply with the Data Protection regulations.

The basic rules are:

You must get explicit consent before sending a commercial email to an individual.
You can continue to keep in touch with past customers.
You must tell people if your website uses "cookies" and have a mechanism to remove them from use.
Explicit must mean "opt in" rather than "opt out" of getting marketing emails.

I can hear you say: "Yes, thanks a lot! Can I send emails to prospects or not? Give us the normal Cousins Business Law plain English answer.

The answer is yes you can if:

They've agreed you can, OR
It does not contain an advert (although why would you send an email to somebody who hadn't agreed you could unless it was an advert?) OR
It’s to someone who is a customer (this is regarded widely, for example someone whom you’ve discussed work with seems to come within this definition).

Who is a consumer/individual?

This is very difficult to answer. I suppose it is sometimes clear that an email address is a business one (johnsmith@business-lname.co.uk clearly seems to be). The advice from the CAP code people is that it might well not be ok to send a cold commercial email to someone even at a work email if you send it to them in their private capacity. I suppose we must interpret this as meaning if someone emails me the offer of a pen to use at home only it breaches the rules but if it's for work the (same) email doesn't.
Perhaps worse is the definition of an "individual"--the aim was, presumably, to make it clear that limited companies are not individuals. But in the way this has been done, partnerships are classed as individuals and not businesses, so if you email Cousins Business Law that's wrong but if you email Gary Cousins Ltd that is ok! You'll guess that I'm not impressed by the state of the uncertainty.
What should you do?
The first thing to say is that we have to ask you to please remember that, if (in the context of this article), you are using:

online advertisements in "paid for" space, e.g. banner and pop-up advertisements;
advertisements in commercial emails;
sales promotions wherever they appear online (including in organisations’ websites or in emails) (I'd have thought most cold emails would normally come within at least one of the latter two.) -
our suggestions are these:
Remember the CAP rules probably apply to you if you send emails in which you try to sell a thing or service (or just advertise it) to a consumer.
Even if the CAP rules "don't" apply, the privacy regulations probably do.
The CAP rules might be a little more generous to you than those of the DTI -the latter will take precedence so take care!
You will almost certainly still be able to email previous customers with details of similar things available etc.
A customer, CAP says, includes someone who has left their details even if they haven't bought - that seems fair. It's surely a form of consent to being marketed to.
Get a good privacy policy (initially these were designed to comply with data protection but put in them words to the effect of "I agree to receipt of email and other communications for any purpose). Have a clear method of showing that the person who you want to email has consented to that policy.
Get consent - always. Then you can't be in the wrong.

Take care: breach of the regulations is a criminal offence and also you could be sued for any damages caused.

And again, if you want to keep life simple just send emails only to people who agree to have them.

Finally, maybe I have missed something but none of us really want to spend our time and money sending ezines, emails or any marketing communications to people who won't read them, do we?

Contact Cousins Business Law for advice on this topic.

This article is not intended to constitute legal advice, nor is it intended to be a complete and authoritative statement of the law, and what we say might be out of date by the time you read it. You should always seek legal advice to confirm whether or how any information in this article applies to your particular situation. We offer a free 30-minute telephone advice session to discuss your particular circumstances.

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