Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
In some circumstances an exception applies to the general rule in the Privacy and Electronic Communications Regulations 2003, which requires marketers to get the explicit consent of consumers before sending them unsolicited direct marketing via e-mail or SMS. The exception allows marketers to work on a less onerous version of opt-in, frequently referred to as “soft opt-in”. Soft opt-in effectively allows marketers to operate on an opt-out basis provided ALL these conditions are met:
1) E-mail address or SMS contact number collected during negotiations for the sale, or during the sale, of a product or service offered by the marketer;
2) Unsubscribe or opt-out from receiving unsolicited marketing communications by e-mail or SMS is offered at the time of data collection and on every subsequent marketing message sent by the marketer if the consumer did not opt-out of receiving unsolicited marketing messages via e-mail or SMS at the time of data collection;
3) Unsubscribe or opt-out must be free of charge and easy to use. The ICO has interpreted that as meaning that the unsubscribe request sent via SMS must be charged at the customer’s normal network tariff; premium-rate services cannot be used for unsubscribe requests. Furthermore, in early 2007, the ASA confirmed the requirement to offer a clear and simple opt-out route in unsolicited electronic marcoms (World Networks, 14 February 2007). The advertiser had sent to consumers an unsolicited SMS that stated “opt-out available”. The ASA considered that that was not a clear and simple means of opting-out of receiving future messages and concluded that the marketing communication breached the Code. The ASA noted that, in its Guidance on the Privacy and Electronic Communications Regulations, the ICO stated that marketers should provide a postal or e-mail address or a short-code number to which recipients could send an unsubscribe or opt-out request;
4) Subsequent unsolicited direct marketing via e-mail or SMS must be about only similar products or services offered by the marketer who collected the e-mail address or SMS number;
5) Identity of the sender must not be disguised.
If any of those five conditions are not met, the marketer must obtain the explicit consent of recipients before sending any unsolicited direct marketing via e-mail or SMS.
We understand that charities cannot take advantage of that exemption for communicating with their donors because they have not been engaged in negotiations for the sale or the sale of a product or service. Charities must gain the explicit consent of their donors before sending them unsolicited marketing via e-mail or SMS. (See also ‘Consent (General)’ and ‘Consent (Explicit)’).
The Copy Advice team is frequently asked how the terms “similar products” and “in the course of, or in negotiations for, a sale” are likely to be interpreted (conditions 1 and 4). “Negotiations for a sale” might include those who have requested quotes or asked for follow-up material (for example the solicitation of a catalogue). The term is unlikely to be limited to someone who has a direct financial relationship with the marketer.
Turning to “similar products”, marketers sending unsolicited SMS texts or e-mails to existing customers should do so only if the marketing message relates to products or services similar to those originally bought or enquired about. An example of a similar product or service would be a customer enquiring about a flight to Rome who might then reasonably be contacted about a flight to another European destination.
Marketers should read the ICO’s Guidance for marketers on the Privacy and Electronic Communications (EC Directive) Regulations 2003 Part 1: Marketing by electronic means, which is available from http://www.ico.gov.uk/upload/documents/library/privacy_and_electronic/detailed_specialist_guides/pecr_guidance_for_marketers_dec06.pdf.
The ASA has judged that, if they hold e-mail and SMS data obtained via sales promotions, marketers should use a slightly more burdensome soft opt-in route: marketers may send one mobile communication asking for explicit consent to use data for direct marketing purposes. Unless the consumer responds positively to that message, the marketer should send no more direct marketing messages (Celltalk plc, 23 June 2004). Marketers should be aware that that requirement by the ASA is stricter than ICO’s guidance on soft opt-in, which does not differentiate between data obtained through sales promotions and that obtained during a sale or negotiations for a sale.
Last modified : 31 January 2012