Are you considering getting started with email marketing? Fantastic! Put the brakes on for a moment before going too fast due to some laws.
As with so many other marketing disciplines, there is just the legal part that you need to get a handle on.
You have probably also considered whether there are any legal hurdles you need to clear before you can get started.
I have answered all the legal questions you are pondering. I have teamed up with a legal practitioner who gives you the legal knowledge you need to master once and for all when you start with email marketing.
Shouldn’t we just get started? Let’s go.
Who can I send emails to?
The short answer is that you should only send emails to people who have actively consented to it.
Even if you have a lot of email addresses of customers or the like, you must, therefore, not send emails with marketing to them if they have not given you permission to do so.
However, there may be an exception. We will get to that in the last point.
How do I get permission to send emails to a person?
When you need consent to send emails to people, there are several ways you can do it. The essential thing is that you make it obvious that by consenting, they grant you permission to send them emails.
It is not possible that, for example, you get consent to send text messages but you also send them emails simultaneously.
Now you just got their email address in the same manner. It doesn’t work! You may only send what you have consented to.
If you wish to obtain consent to send emails and SMS, it is important that this appears in the consent text.
An example could be:
” By consenting, you give permission for us to send you marketing via email and SMS. “
Okay, this is (maybe) a boring and very simple example, but you get the point.
So: Make it clear what you want to consent to.
There are, of course, several different ways you can obtain consent. We take a closer look at this in the following sections. Follow along sometime.
In formulating?
It is very common to use forms to collect email addresses and thus consent. This can be, for example, on your website or social media. However, you must be aware that your form must contain certain points.
When you have to obtain consent, you must subsequently be able to explain certain things.
These are:
- Who has given consent?
- When and how is it given?
- What has the person given consent to?
- Which companies are covered by the consent?
Of particular note with respect to consent is that they must be voluntary. It must be entirely up to the person whether he or she wants to consent to you sending emails.
In practice, this means that you must not condition a purchase on the person giving consent for you to send emails. There must therefore be a separate check box where the buyer can decide for himself.
When you must collect consent for marketing via emails, you must comply with your obligation to provide information. It is after the implementation of the GDPR that the focus has come on this.
Your duty to provide information means that you must disclose the following:
- who you are
- what is the purpose of the collection of email addresses? Is
- that they can always withdraw their consent
- what rights do they have under the GDPR
- how long do you store the personal data
- whether the personal data is sent out of the EU and, if so, on what legal basis.
Much of this information is typically provided in a privacy policy. This does not mean that consenters must necessarily read your privacy policy page-up and page-down before giving consent. When collecting email addresses, it is necessary to inform them of the privacy policy.
In mass?
If you’re a frequent visitor to trade fairs, you’ve probably often considered whether you could land some email addresses while you were there.
And you’re good at that too. You need to be aware that your collection of email addresses must follow the same rules as forms.
This means that you need to be very careful that people are aware of what they are signing up for when they provide their email addresses at a trade show.
What not to do: Don’t just make a piece of paper where people can write their email addresses. Here, you do not get to specify what they consent to.
What to do: Take as a starting point how you would otherwise create a (correct) form to collect email addresses with. Provide a piece of paper (/a form) for each contact.
In this way, you ensure that you give correct consent for sending them emails. It is also advantageous to have the privacy policy in a physical copy that people can read if they wish.
Should I have a double opt-in?
The short answer is: No, not necessarily. The slightly longer answer is that it may be a good idea to have double opt-in in some cases.
Don’t quite understand what I’m talking about when I mention double opt-in. Fair enough.
Quick explanation: A double opt-in takes place by sending the person in question an email when they have signed up.
This email is a confirmation email, where the person in question must again give his consent for you to email him. This is typically done with a link the recipient must click on to give their consent.
Now we have it in place. Let’s go a little further with why it can be a very good idea to have double opt-in, even if it is not a definite requirement.
First of all, the Consumer Ombudsman recommends that you use double opt-in. It is especially recommended if you use pop-up forms on your website.
Now you have to hear why.
These forms make it easy to enter someone else’s email address. It can be, for example, to harass the person concerned with many irrelevant emails.
Therefore, when collecting emails, you cannot always be sure that the email address’s owner entered it.
This is where double opt-in comes into play.
If the person has not entered his or her email in your form, he or she can ignore the double opt-in email. This has the effect that additional consent to send emails is not given. Therefore, it signals that the person in question does not want to receive your emails.
The result of this is that you end up getting sign-ups from people who want to receive your emails.
It will not be in all situations where it is necessary to use double opt-in. If it is, for example, in connection with a purchase, the person concerned will provide other information. This is, for example, name, address, and so on.
There will be much more work in harassing some if it has to be done in connection with a purchase. Therefore, there is a greater probability that enthusiastic consent is given in a purchase situation.
The short of the long story is: It is a matter of judgment whether you want to use double opt-in. If you have opted out, it is an advantage to have a good reason for it if the Consumer Ombudsman or the Data Protection Authority wants an explanation.
What can I include in my emails?
If you have received a consent that you may send emails with marketing, this is, of course, what you must include in your emails.
Sometimes, you may have people’s email addresses without permission to send them marketing-related content. You must, of course, comply with that.
For the above group, you must send service notices by email. However, you must be very aware that these are pure service messages. You must not sneak any marketing in between. It is mainly customers who are sent these service messages.
Examples of service messages:
- We have received your order.
- We have shipped your order.
- Unfortunately, we do not have your item in stock.
- Expected time of delivery.
Therefore, be very careful to distinguish between your email addresses. What have the various contacts given permission for, and what can you, therefore, send them by email?
What should I keep in mind when it comes to GDPR?
GDPR is still a hot cousin that can still be a little tricky to get a handle on. I have already been a bit into GDPR in relation to the collection of email addresses and consents.
In this section, we take a closer look at what you need to be aware of in relation to GDPR and email marketing.
More tips on how I am at the forefront of GDPR
We start with three quick tips on how you can be at the forefront of GDPR in your email marketing.
#1 Remember the reference to your privacy policy. In this way, you ensure that the recipient knows what the email address is used for and how long it will be stored after the recipient has withdrawn their consent.
#2 Make sure you can easily withdraw your consent. It should be easy to withdraw consent when a recipient receives an email from you. It must therefore be possible to unsubscribe from the email.
#3 Review your deletion procedures. In this way, you ensure that old email addresses are deleted immediately when you no longer have a legal reason to keep them.
This does not necessarily have to happen when consent is withdrawn. Subsequently, you may need to document that the emails sent on the basis of consent were sent legally.
However, after a certain number of years, the email addresses must be deleted – and you must be able to document that you deleted them quickly and efficiently.
Is there any particular data I should be aware of?
In some cases, your collection of email addresses may result in the collection of personally sensitive information. If this is the case, you must, of course, be extra careful with the processing of these.
This is, among other things, in relation to how they are stored and that they are deleted when they are no longer needed.
It is an advantage to limit the collection of personally sensitive data as much as possible. However, it cannot be easy to get around in some cases.
Examples of this could be if you collect email addresses to be used for marketing by:
- Medicines or other aids for health conditions
- Political parties.
According to the GDPR, health conditions and political beliefs are sensitive information. In these situations, you must be very careful with your data processing.
Can I buy an email list to which I can subsequently send emails?
The short answer is: Yes, but with certain caveats.
The legality of purchasing email lists is a subject of much controversy. It’s also a bit tricky to figure out. However, you will get an overview of the dos and don’ts when buying an email list.
If you wish to purchase an email list, you are responsible for valid consent being given. This will often not be the case.
An example could be if the recipient has given consent to “the lead company’s business partners/suppliers/other. ” This will not be sufficient consent. It has not been made clear who is going to send the relevant emails upon consent.
The above will both be in breach of the Marketing Act and the GDPR.
Let me lay out a scenario of how you might approach it if a lead company approaches.
- A lead company approaches you with a list of email addresses.
- The lead company states that the persons behind the email addresses have given their consent to receive emails.
- You have not been in contact with the lead company in advance.
- You read the lead company’s consent text thoroughly.
- You are critical of whether you will actually be legal to send emails to these email addresses.
- You cannot use the email list if there is nothing concrete about your company.
- You politely say no thanks.
If you instead end up agreeing to this list, where you subsequently send emails to them, it is you who will pay the fine.
The lead company may have informed you about so many things and given you a guarantee that it is legal. However, your responsibility will still be to ensure that the email addresses you send emails to are collected lawfully.
Let’s take another scenario where you can legally buy into an email list.
- A lead company approaches you about possible cooperation in collecting email addresses.
- A consent text will be drawn up, which YOU must approve.
- You ensure that the consent text contains the following:
- Who the recipient will receive emails from.
- Which emails will the recipient receive (newsletters, offers, press releases, other)?
- Information about whether the email address will be used for other types of marketing, for example, via upload to Facebook.
- Information that the recipient can always withdraw consent and thus avoid receiving further emails.
- You ensure that, with a single click, the recipient has the opportunity to access the statutory information according to the GDPR, which states:
- who collects the email addresses
- in whose interest it happens
- what the email addresses are used for
- how long the email addresses are stored
- which rights the recipient has according to the GDPR.
- You can now buy your way to a legit email list.
This clearly shows that it is not equal to buying an email list legally. Therefore, carefully consider whether it is a solution for you before jumping into it. This can cause more trouble than good.
What happens if I violate some of the rules related to email marketing?
Either the Consumer Ombudsman or the Protection Authority can choose to open the case if you violate the rules. If you are found guilty, it will typically trigger a fine.
The acceptable level, according to the GDPR, is not yet fixed.
However, there is a rule of thumb that can be followed. In the event that the Marketing Act’s guidelines for email marketing are broken, a fine of 1,000 dollars or 14 dollars per illegally sent email. Which of the two fines must be issued depends on which amount is greater.
It can become a very expensive affair if you have sent several million emails illegally. Typically, the fine will be determined based on an estimate of how many emails have been sent. This means that it might be lower than 100 dollars per illegal email. However, it will still be a large amount.
In short, it doesn’t pay to break email marketing rules. It can be a costly round.
Section 10 of the Marketing Act. 2 – how should it be interpreted?
Section 10 of the Marketing Act. 2 raises a number of questions. Let’s get that out of the way before we dive into it a little further.
Section 10 of the Marketing Act. 2 states: ” A trader who has received his electronic address from a customer in connection with the sale of products, may, regardless of subsection 1, market own similar products to the customer via electronic mail. However, this requires that the trader gives the customer a clear and unequivocal opportunity to opt-out of this easy and free of charge, both in connection with providing the address to the trader and with each subsequent inquiry.”
Email and law – Section 10(1) of the Marketing Act. 2Source: Section 10(1) of the Marketing Act. 2
Many doubt whether it is allowed to send emails with similar products to customers, even if they have not given consent to receive emails from you. According to the Consumer Ombudsman, it is allowed. However, there are special conditions that must be met.
In order for you to make use of this exception, the recipient must be made aware in connection with his purchase that:
You will send this form of marketing
these are products that are equivalent to what was purchased
the recipient has the option to opt-out of this form of marketing.
If you have these points in place, you can easily make use of Section 10(1) of the Marketing Act. 2.
Email marketing and law – the quick edition
I have now gone through the seven frequent questions that marketers often wonder about when they need to get a handle on the law around email marketing. I’ll finish with a quick review of the questions. That way, you get a comprehensive overview.
Who can I send emails to?
Answer: To people who have actively consented to it.
How do I get permission to send emails to a person?
Answer: By obtaining consent in connection with the collection of email addresses.
What can I include in my emails?
Answer: You must include what you have obtained consent for.
What do I need to consider with respect to GDPR?
Answer: Three quick ones for GDPR: Refer to your privacy policy, make it easy to withdraw consent, and review your deletion procedure.
Can I buy an email list to which I can subsequently send emails?
Answer: Yes, if you are certain consent has been obtained correctly and according to the law.
What happens if I violate some of the rules related to email marketing?
Answer: You risk a fine of DKK 10,000 or more.
Section 10(1) of the Marketing Act. 2 – how should it be interpreted?
Answer: You are welcome to send emails with similar products to customers without their consent if you make them aware of this at the time of purchase.
That’s it. Now you are ready to take the email marketing discipline by storm. Go for it!
