If you are unaccustomed to posh dinners, with serviettes, avocados and stuff, you might not know which knife to use with which course. In such circumstances it is a good idea to follow an example of someone hungrier than you. Many hosts, considerate of the feelings of their guests, might perform the role themselves. So those engaged in email marketing would have turned to the website of the Information Commissioners Office in the hope of discovering how to conform to the new cookie regulations.
At the top of the ICO Home page is a box stating that a cookie has already been placed on the user’s computer and asking for post-dated approval. Whilst it would seem to contradict the new regulations it does provide a baseline and gives a clear indication of the ICO’s interpretation, which is the one that matters.
Important for email marketing is whether clear gifs are included in the definition of cookie. The regulations state that they are. However, a phone call to the ICO cleared up some of the concerns with regards to how the new regulations apply to a marketing email.
The ICO’s own website gives a precedent for post-dated permission so it would seem it is acceptable to include a clear gif without obtaining prior permission for each visit. As a clear gif is session specific, meaning that once the email is closed the gif no longer functions, it is reasonable to assume that the regulations would not be harsher for them.
Email marketing is permission based, all those on your email marketing lists having had to make a conscious decision to subscribe. The ICO stated that when a person subscribes to your email marketing list a brief explanation of what a clear gif is should be readily available. It is apparent that the ICO believe the legislation is aimed mainly at websites.
What should be included in the email for those who are already subscribers is not so clear. It would seem they need to be told that there is a clear gif in the email, at least for a while. There is always the option to unsubscribe included in every email.