When is a service email not a service email?
18 Sep 2013
One of the most common questions I get asked is around the topic of sending service emails to the entire list. A service email is one that can be sent to recipients, regardless of whether they have given you marketing permission or not. This practice is usually undertaken when the communication is part of the service being supplied (online statement alert, ticket delivery, flight cancellation etc).
It’s always risky to send emails to people who have not subscribed or who have unsubscribed in the past. Before anything, you must consider if you will be seen as disregarding your subscribers' wishes by sending the email (unless it is obviously part of the goods or services they have asked for); after that, you must consider if it is legal.
There is some quite specific legislation that surrounds what you can send an email recipient, and it revolves around the Privacy and Electronic Communications Regulations, which are the law. The rules are quite straightforward and apply whenever you intend to send out a marketing message. When I am deciding what could be defined as a service email and what is not, I consider the following principles.
The first thing to do is to see if your message is a marketing one. Section 11 of the Data Protection Act 1998 (the DPA) refers to direct marketing as ‘the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals’. The term ‘direct marketing’ is regarded as covering a wide range of activities which will apply not just to the offer for sale of goods or services, but also to the promotion of an organisation’s aims and ideals.
To summarise:
It's a marketing message if:
It promotes the sale of goods, services or organisational ideals.
It’s a service message if:
The sender is under a legal obligation to send it
Or
The customer would be at a disadvantage if they did not receive it (but it isn’t a marketing email!).
Generally, if the marketing department wants to send out an email, it will be a marketing one anyway, so the PECR regulations will apply. If this is the case, you must have email marketing permission and this can be obtained in two ways.
1. Positive opt-in
The recipient willingly gives you their email address after they have been made aware that it will be used in marketing and then makes some sort of positive action (clicking a link or ticking a box, or pressing a submit button) to indicate consent. You are then free to send marketing emails to this email address.
2. Soft opt-in
During the process of negotiations for goods or services the recipient gave you their email address. They would need to be offered at the time, the option to opt out of marketing emails through some mechanism like ticking or un-ticking a box. These soft opt-in emails can only be sent emails about similar goods or services from the company that they gave their permission to.
It is good practice to have statements in your privacy policy and terms and conditions, describing how you will use the customer's email address and how to unsubscribe. It is also useful to have information about non-marketing service emails that you are likely to send. A statement about why you might send service emails and the information they may contain could head off future complaints. It is also important to differentiate service emails from marketing communications. A good way to do this is to include within the email text that the email is a service one, and that their marketing permissions have not been affected.
It’s all about honesty and transparency really – recipient trust cannot be built without both of them.
Tim Roe, Director of Data and Deliverability, Red Eye International Ltd
