Are Email Lists Illegal?
Recently there has been a lot of discussion among the marketing community regarding the effectiveness, ethics and legality of using email lists. Some bloggers have even warned business owners and marketers thinking of using email lists that although obtaining a list is legal, actually sending out emails to the prospects therein could result in them facing prosecution.
So how much truth is there in these assertions? Are email lists legal and even if they are, is it ethical to use them?
The Legality of Email Lists
The Privacy and Electronic Communications (EC Directive) Directive 2003 was the statutory instrument introduced by the UK government to bring UK regulations in line with European law.
The section covering email marketing is clear and concise:
“Use of electronic mail for direct marketing purposes
22.—(1) This regulation applies to the transmission of unsolicited communications by means of electronic mail to individual subscribers.
(2) Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.
(3) A person may send or instigate the sending of electronic mail for the purposes of direct marketing where—
(a) that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient;
(b) the direct marketing is in respect of that person’s similar products and services only; and
(c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.
(4) A subscriber shall not permit his line to be used in contravention of paragraph (2).”
So what does this mean for someone purchasing email lists with the intention of using them in a campaign?
Well, let’s try to translate the legalese in the directive into plain English.
Firstly, it’s clear that using email marketing is not illegal. Paragraph (2) essentially says that unsolicited emails are prohibited by law unless you adhere to the conditions outlined in paragraph (3).
These are: that the email address has been obtained during a sales enquiry,
and that you are contacting the recipient about a similar product or service to that which they were originally enquiring about,
and that the recipient had a simple way to notify the collector and subsequent holder of the email address that she/he didn’t want their email address used in direct marketing, both at the time of collection and in every subsequent contact.
This is known as the ‘Soft Opt-In’.
However, the Information Commissioner’s Office, in Data Protection Good Practice Note: Electronic Mail Marketing makes it clear that these rules do not apply to organisations. So there are clearly different rules for business to business and business to consumer email marketing.
What this means for businesses looking to send out unsolicited emails is that while you are allowed to purchase lists of business email addresses, for consumer campaigns the owner of the data (i.e. the email marketing company) must send out the email on your behalf with the recipients (explicit or, in the case of Soft Opt-In, implied) consent.
Are Email Lists Ethical?
So now that we’ve established the legality of email lists what about the ethics of email marketing to an acquired database of contacts? Many in the marketing community are now saying that you should only ever email contacts who are on your own mailing list and that you should never email people who haven’t expressly given consent to be contacted by your company (either through opting-in or by not opting-out when offered the chance). This way the focus becomes building your own email list by encouraging sign ups on your website or over the phone.
This is of course a perfectly reasonable standpoint – no one really likes receiving junk mail. Not only that but if you send out emails that are reported as spam by recipients then you can quickly find yourself in trouble with your ISP or do irreparable damage to your brand perception. So the vast majority of companies should be seeking to build their mailing list organically. This will not only relieve them of the need to acquire lists but will also lead to higher response rates and avoid the risk of being labelled as a spammer.
But before a company has had a chance to build a list, or in industries where building a list would take a long time is it really such a bad thing to send out unsolicited emails? Many would give the blanket answer ‘yes’ but we think the question is a little more nuanced.
Thinking as a recipient of emails what would prompt you to classify an email as junk or spam? Unfamiliarity of the sender is obviously high on the list but we often open emails from people we don’t know. Why? Because the email seems to indicate a relevance to us – it is personalised in some way or obviously refers to a subject in which we have an interest. If you happen to be on the lookout for a new car and receive an email from a reputable looking source that refers to you by name and indicates that it contains relevant information on car purchasing, you’d probably open it, wouldn’t you?
Our position then is that if you can be sure you’re sending out emails to people who have indicated in some way that they are interested in products or services such as yours, if you can be sure that those people have consented to the use of their email address in direct marketing and haven’t subsequently opted-out, if you’re positive that the email details are up to date and accurate and if your motives are genuine and transparent then using an acquired email list doesn’t pose an ethical problem.
That’s not to say that all email lists are fine – the process requires diligence and effort from the sender to ensure that they’re not engaging in spammy techniques. You should always take every possible measure to ensure that:
- The data you’re using is up to date and accurate – loads of bounced emails are going to make you look like a spammer (and if you’re not checking this stuff, technically you are a spammer).
- The data provider is supplying only emails where permission has been given on an opt-in basis and that they have given subscribers simple, free ways to opt-out every time they’ve been contacted.
- The recipients are highly likely to be interested in the product or service you’re offering or interested in the information you’re conveying. This is the key factor in whether recipients will consider your email as junk so make sure your emails are relevant.
- You include a link via which recipients can unsubscribe from the mailing list and that there is a straightforward way of sharing this with the data provider.
You should also take steps to:
- Personalise your emails as much as possible – this will not only improve response rates but indicates to recipients that you’ve obtained their email address legitimately and aren’t just using software to auto generate email addresses.
- Include the address and phone number of your company in the email.
- Ensure the frequency of your emails is reasonable – with an acquired list you really shouldn’t be sending out more than a handful of emails in a single year.
Ultimately the question can only be answered by each individual on a case by case basis. If you’re sending out highly relevant emails to an up to date list of recipients who are likely to be interested, if those recipients have been given ample easy opportunities to opt-out of receiving such information, if you’re offering them another opportunity to opt-out in the email itself and if you’re being completely open about who you are and what your motives are then you are complying with both the letter and spirit of the law.
The single most important factor in complying with legislation is the relevancy, up-to-dateness and accuracy of the email data provided. Be sure to grill each supplier you consider about how they’ve collected and maintained their databases. Are they really likely to know as much about the subscribers as they claim? Are they offering to send out thousands of emails for only a couple of hundred pounds? Beware of deals that sound too good to be true and check our pricing guide article for comparison.
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