Understanding consent in e-marketing

Posted by Sara Hawthorn

To opt-in or not to opt-in, that is the question. And a pretty serious one at that. I’ve noticed a spike in unsolicited marketing emails recently, mainly, I suspect, from people obtaining my business card at the various networking events I attend and automatically adding me to a list. Whilst, for the most part, I don’t mind new business contacts staying in touch, the recent rise of random newsletters I’ve received, a good deal of which cover subjects totally unrelated to me, points to a much more serious issue.


Rules governing e-marketing

The Data Protection Act is an important piece of legislation, and it covers all aspects of marketing communication (including faxes, for anyone who remembers those days). It sets out what you are and aren’t allowed to do, and it’s something that every business person, regardless of how big or small your business is, should at least have a working knowledge of because it applies to you. If you send an email, a text, a newsletter, an update, anything which promotes your business to new or potential customers then you need to know the rules. In this instance, the rules are definitely not made to be broken.

Regulations 22 & 23 apply to electronic mail cover the following:

“any text, voice, sound, or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service”

Everything you can think of except faxes, basically, as they are covered by another regulation. Mainly, the law prohibits the sending of e-communications:

  • To anyone who hasn’t given their consent (opted-in)
  • If you have disguised or concealed your own identity
  • If there is no valid email address or link for the recipient to opt-out

The latter two are very clean cut and clear, but the first point contains an exception to the rule which probably accounts for the type of communications coming through. ‘Soft opt-in’ (Regulation 22(3)). There are multiple points to this section but crucially, it states that:

You may send or instigate the sending of electronic mail for marketing purposes to an individual subscriber where:

  • you have obtained the contact details of the recipient in the course of a sale or negotiations for the sale of a product or service to that recipient;


Understanding ‘soft opt-in’

It’s this point I want to focus on as it’s a huge grey area for people like myself who do a lot of networking and amass business cards like old cigarette cards. Is networking classed as a negotiation of sale for a product or service? I’d argue not. The first rule of networking is don’t walk in and try to sell to people. This should apply to the whole process of making that new contact, not just the few minutes we spent chatting at the drinks table. So the that fact you have my contact details doesn’t automatically mean I’m free game to be bombarded with marketing material.

However, that’s just my opinion and the person I’ve been speaking to my view the conversation, and therefore their right to include me in their marketing communications, differently. The statement explaining the Regulation is vague. And vague leaves room for manoeuvre so  it’s much harder to establish whether the emails are solicited or unsolicited.  Even more so as the law goes on to say:

If you satisfy these criteria, you do not need prior consent to send marketing by electronic mail to individual subscribers. If you cannot satisfy these criteria, you must not send marketing by electronic mail to individual subscribers without their prior consent.

What if I believe the criteria hasn’t been satisfied, but the sender does? Who’s in the right? Arguing the legalities could leave you going around in circles and still no clearer on what’s right.


Taking the moral approach

Of course, the vast majority of businesses will remove you from their lists if you request to be unsubscribed, the penalties are too severe not too. But that still leaves us with the issue of receiving e-marketing in the first place. Any regular networker knows the importance of the follow-up; a quick email, call or LinkedIn message that cements you in that person’s memory. If you want to include me on your marketing database this is the key time to ask me. Use the power of email to ask for my consent and solve the problem before it even arises, that way there’s no ambiguity and the fact you’ve bothered to ask, makes me think you actually care about data protection.

For most of us, networking is about the long-term, not the instant win, so don’t ruin that first positive contact by assuming that I’m happy to receive all the marketing emails in the world about your products and services. There’s every chance I will want to know at least something about your company, especially if we’ve spoken and swapped cards, but don’t take that for granted at such an introductory stage. A little bit of consideration and effort could save you stress, or even a fine, later down the line.


The Information Commissioners Office is a good place to start if you’re a little unclear about data protection and the rules you should be following. It’s a topic worth keeping up-to-date on. And if you’re looking for a little help making your (legal) e-communications a little more sparky and engaging, say hello and let’s get the kettle on.