Tips from the top
Mark Smith is a solicitor specialising
in marketing and data protection at Osborne Clarke. He provides advice to
a diverse range of brand owner and agency clients on intellectual property rights, e-commerce issues, data protection, advertising and marketing regulation and commercial contracts.
1. Be responsible when carrying out e-mail marketing initiatives. It’s important to remember that some e-mails are not appropriate for younger people and children. Exercise particular caution with respect to products that have the potential to harm a child, mentally or physically, or that feature content that could be deemed unsuitable. The CAP Code lays out strict rules and age limits when it comes to certain products, such as alcohol, weight control and slimming products, and claiming ignorance of a recipient’s age isn’t going to hold water. The onus is on the marketer to ensure that the age or date of birth of all intended recipients is known when marketing these sorts of products.
2. Don’t mislead in your presentation and design. As it is in the world of direct mail, so it is in the world of electronic marketing – it’s essential that marketers ensure e-mail marketing is transparent. The design and presentation of such material must clearly convey it is related to marketing and these communications mustn’t be misrepresented as, or easily misconstrued as, editorial information
or private correspondence. In August 2011 the ASA upheld a complaint against UK-2 , an e-mail hosting company, which had sent out a marketing e-mail with the subject line “Warning: Your Mailbox is Full” because the e-mail was not obviously identifiable as a marketing communication e-mail without opening it and reading it.
3. Stay up to date with developments. In April 2010 the ASA adjudicated on a complaint from a consumer in relation to a marketing SMS sent by loan provider Yes Loans. Although the consumer had applied for a loan more than two years previously, the ASA took the view that this was too long ago for the company to apply the soft opt-in option. Unfortunately for marketers there is very little guidance from the ICO or ASA on how long consents will be valid, but it is likely to depend on the nature of the marketplace. For example, furniture or white goods companies, which operate in markets with a lengthy purchase interval, are likely to be able to retain data for longer than companies operating in faster moving markets.
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