Spam, legitimate marketing and the law

Spam. Junk emails. We all get them and they can be the bane of our lives, clogging up our inboxes.

They range from the offensive to the banal and many are sent out by cyber criminals to distribute malicious software or trick people into handing over personal data. There is not much you can do about this problem legally as these criminals are usually based outside the UK.

However, you may want to stop legitimate UK companies sending out marketing emails, even if you previously agreed to receive them. Can you report this issue to the authorities in the hope that action will be taken? We look at the UK law and how it relates to marketing by electronic means.

Most companies use some form of direct marketing to find new customers and to keep in touch with existing ones. Email and the web has revolutionised the process, but unfortunately new technology has also been exploited; not only by spammers but also by unscrupulous companies.

The UK legislated for this under the Privacy and Electronic Communications (EC Directive) Regulations 2003. This legislation is enforced by the Information Commissioner’s Office (ICO). It says that all organisations in the UK that use electronic communications such as email or text messages to send marketing material must obtain prior consent from an individual. It has become known as the ‘opt-in’ rule in the UK but it’s a much misunderstood law. According to law firm Pinsent Masons, there is a widely held misconception that the user has to actively opt in to agree to their data being used for marketing purposes, and most people understand this to mean ticking an opt-in box on a website. That’s not the case.

Prior consent confusion
Prior consent simply means the consumer must take some form of positive action to authorise the sending of sales emails. There are several ways this can be done.

When someone registers with a website using an email address or other contact details, for example, they are often confronted with a range of boxes; some companies provide an opt-out box. If this is ticked by the user, then the organisation is not permitted to use their details for marketing.