Data and consent: what do you need for your email marketing campaign?

In part 2 of our series on how to start your email marketing campaign the right way, we are looking at the importance of data, what you need and how to go about obtaining it so that you are compliant with the law.

Without data your campaign will be a non-starter. You will have no one to send it out to and without quality information you run the risk of breaking the law and emailing people who don’t want to receive mailings. You could also get tagged as a spammer which will make it hard, if not impossible, for your marketing campaign to get seen.

Mailing list

First things first, you need to create a mailing list so that you have someone to send your campaign out to. There are a number of ways to capture contacts, including a signup button on your site, advertising on social media, getting consent from current clients and renting lists.

One thing that you do need to keep in mind throughout when creating your list is that you are at all times compliant with the Data Protection Act 1998 which regulates emails that contain personal data such as names and personal addresses.

You also need to be aware of The Privacy and Electronic Communications (EC Directive) Regulations 2003, which regulate the "communications for the purposes of direct marketing by means of electronic mail." This pertains specifically to "unsolicited" emails to "individual subscribers."

Is it legal to send unsolicited emails?

Yes and no.

Emails sent to “corporate subscribers” (e.g. which are free of any personal information are not regulated under English law, though these emails do need to contain certain information, which we cover further below.

"Corporate subscribers" include limited companies, PLCs and LLPs.

Happy subscriber

Unsolicited marketing emails sent to individuals, sole traders and general partnerships are considered unlawful unless the individual has consented to receive the email.

What does it really mean to opt-in or out?

Opt-ins, soft opt-ins and opt-outs are three different ways of obtaining consent.

An opt-in is where the subscriber has specifically requested to receive emails from your company. This is usually done by ticking a box that confirms that they wish to sign up to your mailing list or filling in a form.

Another option is the soft opt-in. According to the Privacy Regulations this is when “(i) an email address was obtained in the course of the sale or negotiations for the sale of a product or service to that recipient, (ii) the direct marketing is in respect of similar products and services, and (iii) the recipient was given the opportunity to "opt out" when the details were collected and with subsequent communication.”


An opt-out is where the subscriber has been given the opportunity to opt-out from receiving emails at the point where they submitted their contact information. This is usually done by them not ticking a box on sign up.

During the data collection process, there are certain things that need to be provided by you, the company, to the receiver. You need to make them aware of the identity of the data controller and the purpose(s) for which the data is intended to be used.

The easiest way to meet these requirements on your website is by supplying the information in your fair processing notices and privacy policies.

Is it legal to rent lists?

It is not against any regulations to rent lists, though you should always make sure that you rent them through a reputable company if you do decide to go down this route. This way, you will be sure that you are obtaining quality subscribers who have genuinely agreed to opt in.

What information needs to be included on all marketing emails?

There are several important pieces of information that need to be included on all marketing emails. The Companies Act requires that all companies include the following on their business communications:

  • Company registration number;

  • company name;

  • registered office address; and

  • place of registration

The Privacy Regulations (regulation 23) state that:

"A person shall neither transmit nor instigate the transmission of, a communication for the purposes of direct marketing by means of electronic mail –

(a) where the identity of the person on whose behalf the communication has been sent has been disguised or concealed;

(b) where a valid address to which the recipient of the communication may send a request that such communications cease has not been provided;

(c) where that electronic mail would contravene regulation 7 of the Electronic Commerce (EC Directive) Regulations 2002(1);

(d) where that electronic mail encourages recipients to visit websites which contravene that regulation".

Regulation 7 of the Electronic Commerce Regulations details that:

“A service provider shall ensure that any commercial communication provided by him and which constitutes or forms part of an information society service shall—

(a) be clearly identifiable as a commercial communication;

(b) clearly identify the person on whose behalf the commercial communication is made;

(c) clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible and presented clearly and unambiguously; and

(d) clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously.”

The above basically means that you need to be as clear, upfront and honest as possible about where you are communicating from, who it is on behalf of and what type of mailing it is.

What is best practice

  • Where possible, concentrate on opt-in-based marketing.

  • When you collect a subscriber's details, provide a statement of use.

  • Clearly explain what individuals' details will be used for (make sure that your privacy policies are up to date).

  • Make it clear how subscribers and potential recipients can opt out of marketing messages.

  • Comply with opt-out requests quickly.

For more information about obtaining data and creating a healthy mailing list contact Marc at Winbox for help.