Part of the email marketing industry in the UK is built around this phrase:
‘in the course of a sale or negotiations for the sale of a product or service’.
Those are the conditions under which – if you have collected an email address – you are allowed to send marketing emails (b2c), even if they have not explicitly opted in to receive mail from you.
Most sites assume signing up for an account, or beginning a checkout process to fall within ‘negotations for the sale of a product service’. As a result, they consider it perfectly ok to send you abandoned basket emails if you have begun checkout, and it’s fairly standard practice to email users who have registered for an account with you, as long as they have not specifically opted out.
Here’s how the Information Commissioner’s Office talk about this:
John Lewis essentially did exactly that, or considered they had. Here is how the man who took them to court (a Sky News producer) described John Lewis’ argument: (from http://news.sky.com/story/1272933/spammer-to-pay-damages-after-court-victory):
To be clear: What John Lewis were doing here is considered fairly good practice. The user signed up for an account. They had the opportunity to opt out & did not. Yet the court still considered it spam & issued a fine.
What does this mean for email marketing?
If you are a business or a website owner:
- It may mean you should relook at the wording on your website to make it clear that an account signup is considered ‘negotiation toward a sale’.
- It may mean you need to speak to your abandoned basket email provider to ask “are we definitely covered here? If not, what do we need to do?”
- It may mean that your ‘opt out’ box should be more prominent after signing up & that you highlight that the sign up is considered the beginning of a relationship.
- It may mean you should check through how your existing email addresses have been acquired a little more thoroughly.
- It may mean some sites need to watch out for scammers, putting in spam claims to try and win the fine money.
- It may even mean you need to move to double opt-in, or more heavily confirm opt-ins, as – of course – anyone can enter anyone else’s email address on a form, it is not necessarily confirmation from the actual email owner that they wish to receive your communications.
- It may mean you should think about not emailing users unless they have explicitly ticked a box, even though the Information Commissioner says it’s fine to do just that under some conditions.
Or, this may just be a fluke, and another court may decide a similar case entirely differently.