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Mastering Email Marketing: Legal Compliance of Marketing Communications

Email marketing is a powerful business tool for connecting with audiences, boosting brand awareness, and driving sales. However, it’s crucial to assess and handle personal data protection issues carefully when using this strategy.

In the European Union (EU), there are certain rules in the General Data Protection Regulation (GDPR) and the Privacy and Electronic Communications Directive (ePrivacy Directive)  that businesses need to follow when sending email marketing. In this article, we will delve into the specifics of email marketing according to these two regulations, including understanding when and how marketing emails can be sent, whether a data subject consent is needed, and best practices data privacy and protection compliance.

Understanding Email Marketing and GDPR and the ePrivacy Directive

Simply put, email marketing involves sending promotional or informational content through email channels. This can take various forms, including newsletters, product announcements, special offers and more.

When it comes to legal rules, GDPR focuses on the broader spectrum of data protection and privacy. On the other hand, the ePrivacy Directive is more focused on electronic communication, which directly impacts your email marketing strategy. According to the ePrivacy Directive, email marketing includes any text, voice, sound, or image message sent as an email, SMS, MMS, voicemail, or through apps like WhatsApp, if it’s for direct marketing. This covers almost any communication except for service notifications.

When Can Businesses Send Email Marketing Communications?

To determine when your businesses can send email marketing communications, you need to consider whether you’ve had a previous relationship with the person receiving the email. For example, if you’ve recently done business with them, you’re generally allowed to send communications based on legitimate interest. However, if such a relationship doesn’t exist, it’s important to obtain their explicit consent before sending any communications.

Keep in mind that national laws of EU Member States might impose additional requirements.

Legal Basis for Sending Email Marketing Communications

1) Consent: obtaining explicit consent from individuals before sending marketing emails is a secure approach. Consent should be freely given, specific and easily revocable. Note that using pre-checked boxes, tricky wording, or hidden consent clauses are not considered valid forms of consent under GDPR. Businesses must clearly explain the purpose of data collection, obtain affirmative action from the individual, and provide them with an easy option to withdraw their consent.

  • Best Practices for Obtaining Consent and Withdrawal Options
    • Clear and Transparent Communication: when obtaining consent, make it easy to understand why you’re collecting data and how it will be used for email marketing.
    • Unbundled Consent: send consent requests separately from other terms and conditions, making it easy for individuals to understand and provide consent for email marketing.
    • Granular Consent: allow individuals to choose the types of emails they wish to receive. This prevents the ‘all or nothing’ approach and gives them more control over their inbox.
    • Easy Withdrawal: enable a simple and accessible for users to withdraw their consent at any time. This can be achieved through clear unsubscribe links in emails or by providing clear instructions on how to opt-out.

Read more about consent under the GDPR here.

2) Legitimate Interest: businesses can also rely on legitimate interest as a legal basis for email marketing to their existing customers. Legitimate interest involves a careful balance between your business’s interests and the rights of the affected data subjects. A legitimate interest assessment must be conducted to ensure that the interests of your business do not unduly override the individual’s rights. Each instance of contact for marketing purposes should always include a simple and convenient way for the customer to decline any future marketing communications, making it easy for them to say they don’t want more marketing messages.

  • Best Practices Concerning Legitimate Interest
    • Relevance is Key: ensure that your email marketing matches what the people are interested in and relates to your prior relationship with them.
    • Balance and Respect: provide clear and accessible options for recipients to opt-out or unsubscribe and make sure to follow through on these requests quickly.
    • Regular Review and Justification: regularly review your marketing strategies and assess whether the legitimate interest basis still applies. Be prepared to justify the relevance of your outreach if questioned and keep records of your rationale for using this legal basis.

How can Logan & Partners help?

Email marketing remains a potent tool for businesses, but its implementation must align with the applicable regulations. By understanding the legal basis for sending marketing communications (consent or legitimate interest), and by adhering to best practices, businesses can navigate the email marketing landscape while maintaining compliance with GDPR and ePrivacy Directive.

We invite you to book a free 20-minute consultation with our data protection lawyer to discuss your concerns or questions about your direct marketing and data privacy and protection compliance.

| Image by vectorjuice on Freepik |

blank Anna Levitina

Of Counsel

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