Last April, the last European Union (EU) member states implemented Article 13 of the Directive on privacy and electronic communications (2002/58/EC).
The first paragraph of Article 13 states that sending commercial email messages is only allowed if recipients have given their prior consent. In the media, the Article has been referred to as the "opt-in directive." In reality, the directive has a very soft approach to opt-in, allowing for several types of exemptions that make it possible to send marketing messages via email without having to first ask for permission.
What's the state of email marketing in the EU a year later? According to Petter Rindforth, head of the IT law department at Groth & Co and arbitrator at the World Intellectual Property Organization (WIPO), the number of legal queries on email marketing has actually increased after the introduction of the directive.
"Naturally, the directive itself has raised the general awareness amongst companies, but the complexity of Article 13 is also a reason for the growing number of questions," Rindforth states.
In my view, the initial intent of this supposedly "soft" opt-in approach has backfired. However, being a strong opt-in advocate, I think it has backfired in a good way. Because of the exemptions that are supposed to make it easier for companies to conduct traditional, unsolicited direct marketing via email, in reality email marketers are now forced to adopt a stricter opt-in policy than ever before.
Let me explain why. First, let's look at the directive and what it says about email marketing in Article 13:
- Email marketing messages can only be sent to natural persons (consumers) who have given their prior consent (opt-in).
- If there is an existing customer relationship and said customer has not initially refused commercial contact via email, a seller of a product or a service has the right to market to the customer its own similar products or services. In this case, the sender has to offer the recipient a free-of-charge and an easy-to-use mechanism to say no to future emails (opt-out).
- It is OK to send commercial messages to legal persons (business owners and employees) without prior consent. In this case, the sender also has to offer the recipient a free-of-charge and an easy-to-use mechanism to say no to future emails (opt-out).
- It is prohibited to disguise or conceal the identity of the sender in a commercial email message.
- It is prohibited not to include a valid address to which the recipient can send a request that further communications cease.
Does the directive make email marketing less complicated for marketers than it was before its implementation? Based on how the media has reported it, the answer is yes.
The directive has made email marketing more complicated in Europe, as it raises the following questions:
- What is the definition of an existing relationship? Since it is not defined in the directive, how can a marketer know when an existing relationship ceases to exist? After one month, six months, three years? Does the term existing relationship have different meanings in different EU member states?
- What is the definition of a similar product or service? Since it is not defined in the directive, how can a marketer know when the product is similar enough to allow her to send an opt-out-based campaign?
- When is someone a natural or legal person? Will a commercial business-to-consumer (B2C) email message sent to a person's work email address break the law?