How to guide: Email and cookies legislation
05 Jul 2013
From 26 May 2011 additional measures came into effect in the UK as part of an update of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) (“the Regulations”). The revised law covers any technology that stores data on or uses data from a person’s “terminal device” such as computer, laptop, smart phone, web enabled TV, etc. This includes technology that is used to track the activity of a user’s terminal online.
The revised law – implementing the revised EU ePrivacy Directive – replaces the existing ‘notice and opt out’ provisions with a requirement to obtain consent for the storing of information or the gaining of access to information stored in the terminal equipment of a subscriber or user… having been provided with clear and comprehensive information.
Although the new regulations do not mention “blank gifs” or “web beacons”, whether or not open tracking in emails falls under the regulations is still unclear at this point. Regardless of whether a type of tracking is affected or not by the regulations, best practice indicates that information regarding the use of all types of tracking employed on your email campaigns and website is informative and easily accessible by consumers, regardless of why you are communicating with them.
Email is often different from a user visiting a website. With email, the user has agreed to receive the marketing email they are being sent. If at the point of recruiting a customer to email communications the marketer gives clear and concise information about the kind of data and how it will be used to serve emails, then it is likely that the recipient will have some expectation of measurement and tracking of their actions. This is known as “implied consent”.
If, however, the data is being used for more intrusive purposes, such as being combined with other data and used in a way that the recipient is unlikely to know about, understand or expect then it will be affected by the new Regulations.
This document does not constitute legal advice, but is informed guidance. This document was revised and re-issued in July 2013.