Electronic mail (Regulations 22 and 23)

How do the Regulations apply to marketing by electronic mail?

The Regulations define electronic mail as ‘any text, voice, sound, or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service’ (Regulation 2 ‘Interpretation’ applies).

In other words, email, text, picture and video marketing messages are all considered to be ‘electronic mail’. Marketing transmitted in WAP messages is considered to be ‘electronic mail’. WAP Push allows a sender to send a specially formatted SMS message to a handset which, when received, allows a recipient through a single click to access and view content stored online, through the browser on the handset.

We consider this rule also applies to voicemail and answerphone messages left by marketers making marketing calls that would otherwise be ‘live’. So there are stricter obligations placed on you if you make live calls but then wish to leave messages on a person’s voicemail or answerphone.

Faxes are not considered to be ‘electronic mail’. Fax marketing is covered elsewhere in the Regulations. These regulations also do not cover so-called silent calls or calls where a fax or other electronic signal is transmitted; this is because no marketing material is transmitted during these calls.

This is what the law requires:

You cannot transmit, or instigate the transmission of, unsolicited marketing material by electronic mail to an individual subscriber unless they have previously notified you, the sender, that they consent, for the time being, to receiving such communications. There is an exception to this rule which has been widely referred to as the soft opt in (Regulation 22(2) refers).

You cannot transmit, or instigate the transmission of, any marketing by electronic mail (whether solicited or unsolicited) to any subscriber (whether corporate or individual) where:
Your identity has been disguised or concealed; or
you have not provided a valid address to which the recipient can send an opt-out request.
That electronic mail would contravene regulations 7 or 8 of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013); or
That electronic mail encourages recipients to visit websites which contravene those regulations (Regulation 23 refers).
A subscriber must not allow their line to be used to breach Regulation 22(2) (Regulation 22(4) refers).

For further information, read our guidance on direct marketing (pdf).