The EU has recently published an “Opinion” on the correct interpretations on privacy & electronic communications that helps clarify some grey areas.

Consent
At the time of opt-in the opt-in mechanism must be “legitimate, explicit and specific”.

This means that in no way can you hide the fact that the person is signing up to receiving emails. The example given is the general acceptance of terms and conditions on a website as no longer being an acceptable method of opt-in.

On the web it must always be a separate tick box for signing up to email messages. This tick box cannot be pre-ticked.

Third Party Emails
If you rent your email address lists or if you pass your email address onto other companies in your group then it must be indicated at the point of opt-in the types of goods and services that 3rd parties will send marketing emails about.

Legacy Lists
The Office of the Information Commissioner (OIC) has stated that as long as the list was compiled with Data Protection Legislation of that time, it has been used within the last year and an opt-out mechanism is used then they have no issue with the use of legacy lists.

Email Harvesting
The automatic collection of personal data via the Internet and chat rooms is unlawful. This applies whether data is collected via a human or harvesting software.

Emailing Company Addresses
Each member state was given the option of choosing opt-out or opt-in for businesses. The UK was one of the very few that chose the opt-out route.

The opinion gives companies a couple of notes of caution regarding using opt-out rather than opt-in. Firstly what if your emails are being sent to a member state that uses opt-in? Secondly it is difficult to distinguish between a personal and business address.

The Opinion suggests that companies take on board these two points and collect the additional data such as the country the customer is based in or ask the fact whether it is a personal or business address to ensure compliance.

Soft Opt-in
Where the email has been collected in the course of a sale or the negotiations of a sale it can only be used by the company involved in the sale or negotiation. Subsidiaries or partner companies cannot send emails to the address.

Similar products or services
When using the soft opt-in emails can only be sent that contain content relating to similar goods and services. The similarity of these products and services should be judged upon whether the recipient would judge them to be relevant, not whether the company would classify them to be relevant.

This article of course only covers the legal argument given by the directive. For maximum success of your email marketing campaigns we would always suggest you collect an opt-in from your customers and prospects.