Despite the privacy legislation being only several months old there is already a 2nd update. The main areas relevant to email are listed below:

How long can legacy lists be used for?

The legislation originally stated that lists compiled in line with the legislation prior to December 2003 could be used. However the new guidance states that after December 2004 the Information Commissioner will start to clamp down on the use of these email lists unless they have been used regularly with opt-out reminders and cleaned. If the criteria are met then the list can continue to be used.

3rd Party lists

There has been much debate around whether 3rd party lists are acceptable to use. The guidance suggests they are as long as the list is opted-in and the opt-in statement to third party emails is clear, transparent and in no way misleads the intended recipient.

Tick box examples

The new guidance gives specific examples of how to word the opt-in statement on a website. The examples clearly show that the Information commissioner will not tolerate attempts to mislead people in the opt-in process. In each example it is presumed a tick box is next to the text.

Example 1 – How does an individual solicit contact from third parties on a particular subject?

“I want to hear from other companies that offer gardening products. Please pass my details on to them so they can contact me.”

Example 2 – How can individuals “solicit” e-mails from third parties on unspecified subjects?

“I want to hear from other companies about their online offers. Please pass my details on to them so they can contact me.”

Example 3 – Getting an individual’s consent to receiving unsolicited third party emails on specified subjects

“If you would like us to pass your details on to other organisations working to protect the environment, tick here.”

Example 4 – How to consent to receive unsolicited third party emails on unspecified subjects

“We’d like to pass your details on to other companies so that they can send you on-line offers. If you agree to this, tick here.”

Viral Marketing

A set of new guidance is given to viral marketing. The guidance gives two examples and suggests techniques that it would expect to be observed.

Example 1

A marketer (“A”) asks a person (“B”) to forward A’s original marketing message to a friend or friends (“C”)

In this example the guidance suggests that A should encourage B only to forward emails to those that B is certain are happy to receive them.

Example 2

A asks B to hand C’s contact details over to A.

In this example it suggests an email cannot be sent unless C has notified B that they are happy to receive such messages. The guidance suggests marketers should ask B whether they have the consent. Marketers should also check the email address of C against any suppression or opt-out lists.

At this point marketers must inform B that they will be telling C where they obtained the email address.

It is likely that the viral marketing guidance will be updated shortly as a lot of clarification is going to be required by marketers heavily involved in viral marketing.

Email Appending

There are services advertised now where you can add an email address from a rented list against specific people in your own customer database.

This will only be acceptable if:

• The list is opted-in
• A further email is sent stating where you collected their email address and asking them to opt-in

Email tracking

The tracking of a recipient’s activity is also covered in the new guidance. Either a statement in the email explaining the use of tracking technology used and how it can be turned off or a link to the section of your privacy policy that explains the use of email tracking in particular.