The email marketing industry, and that bit of it using email marketing software, has been blessed with legislation that is simple and straightforward. It has been as easy to comply with as to understand. Even where there has been ambiguity, this has generally been of a matter is of little importance and the legislators have been quite happy to see how things develop. But now we have new regulations brought in under the Privacy and Electronic Communications (EC Directive) Regulations 2003.
These bring in restrictions whenever cookies or devices such as clear gifs are used in marketing emails or dropped on a web user’s internet connected device, such as desktop, laptop, tablet, mobile phone, etc, to access or store information on those devices. It requires that the subscriber or user [both defined in the legislation] be given clear and comprehensive information as to what cookies are and do. Further there is a strong consent requirement.
The intent is to bring UK law into line with EC Directive 2009/136/EC. Its implementation date was put back to an unspecified time after 26 May 2012, the delay probably having something to do with the response from an industry concerned about its effect on email marketing software.
Few publications from the Information Commissioner’s Office have been so eagerly anticipated as the recently published guidance to the interpretation of the requirements under the Act. The multi-page document is available here.
Rather tellingly this ‘update’ to the previously issued guidance runs to many more pages yet still fails to be definitive. Whilst this vagueness is irritating it does provide for sensible interpretation.
The ICO states that if it receives complaints it will consider what action has been taken so far, what plans the company has and the time scale. In other words anyone complained of will need to demonstrate that they have taken steps to comply with the regulations.
The ICO suggests three pointers for compliance:
- Follow ICO advice,
- Implement ‘quick wins’,
- Look for advice from industry.
Even in this there are problems. For instance, the Article 29 Working Party has said that the IAB/EASA Best Practice Recommendations on Behavioural Advertising do not comply with the regulations. Which advice does one follow?
It is never satisfactory when legislation is vague and open to interpretation. However, the ICO seem to be suggesting that this will be taken into consideration when responding to complaints.
Whilst the guidelines are infuriatingly unspecific they do at least show what must be done. The most important is not to do nothing. You need a plan. It does not, at this stage at least, need to be long term. You should have something on your website to notify your visitors that you use cookies. It needs to be fairly prominent, at least initially. You must explain what your cookies do and who will have access to the data. The Regulations state that cookies require the person to opt in.
The report of the death of email marketing software was wrong and there are fairly simple steps one can take to ensure compliance. In a future article will give some examples and suggestions.
Melvin Perry is a young writer who writes many articles on the base of email marketing for 3 years. You can go through his article and take tips from his important content about email marketing.
