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?
Not only must an email marketer be aware of the implications of the EC directive itself but she must also be aware of other national laws that affect the opt-in legislation. In Sweden, for example, the one-man company form "unregistered firm" is defined as a natural person. Thus, if a business-to-business (B2B) email marketer sends an opt-out campaign, he runs the risk of breaking the law in Sweden since the recipient from an unregistered firm, according to the legislation, is a natural person and protected against unsolicited commercial emails.
So, what does all of this mean for a legitimate email marketer? Are the days of effective communication via email in Europe over? Absolutely not! Actually, I would say that the days of effective email marketing are about to begin.
The last year has shown that there are two paths an email marketer active in the EU region can take. She can become an expert in how to avoid violating the exemptions, which in my opinion will not represent the best future in terms of achieving effective email communication; it has proven to be and will remain too complicated.
The second choice, I think, is the path to take. The only alternative that will guarantee that a marketer will not violate any of the exemptions of Article 13 is to go full opt-in, regardless of whether we are talking marketing to consumers or businesses. Some of the obvious advantages of an opt-in only approach within the EU are these:
- You do not have to worry about accidentally sending illegal B2B opt-out campaigns to a business contact who has the status of a natural person.
- You do not have to worry about what defines an existing relationship and risk sending something that you consider to be legal but the recipient considers unsolicited and illegal.
- You do not have to worry about what is a similar product or service.
In addition to keeping you away from breaking any national opt-in laws, your organization will benefit by achieving increased response rates on your email marketing campaigns and corporate newsletter deliveries. Why? It's simple. Europeans are more likely to read email messages they have asked for.
According to email marketing firm IPT, 92% of UK marketers include email in their marketing budgets. Of those, 51% intend to increase their spending in 2005. With the rise of high quality, but still unsolicited, commercial B2B email marketing, legal persons will be more and more reluctant to receive those growing numbers of messages.
Opt-in only in B2B marketing is in the best interest of all parties. The vast majority of the B2B marketers I talk with express suspicion of mass communicating via email without having their clients' permission. I think many marketers have a greater fear of alienating clients with unwanted messages than breaking the law.
About two years ago, students at Stockholm University asked a group of people what they thought about opt-in and opt-out email marketing. About 83% said permission-based email marketing was a serious form of marketing. Only 12% said opt-out email marketing was a serious form of marketing. Today, even fewer would agree that opt-out email marketing is a serious form of marketing.
Sending email marketing messages only to those who give permission to receive them is not about being nice or overly afraid of breaking any laws; it is about being a savvy marketer with a goal to generate the best possible results. But the nice side effect of opt-in only email marketing is that apart from helping marketers achieve their marketing objectives effectively and giving customers what they are interested in, it minimizes the risk of breaking any national opt-in laws within the EU.
Disclaimer: Remember, I am just a marketing guy, not a lawyer. If you are running opt-out campaigns in Europe, do not forget to talk with your legal department or legal counsel if you have any concerns about the legality of your email marketing campaign.
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