Email and the Law

Never too late for good news

Precise information gives email marketing an edge, one that other forms of marketing can only dream of. The Privacy and Electronic Communications Regulations’ (PECR) limitation on the use of tracking cookies, the enforcement of which started on 26 May this year, was a threat which promised to hit our return on investment.

When people say ‘at the last moment’ they normally mean quite near the last moment. The Information Commissioners Office (ICO) provided contentment for pedants when at the last moment, 25 May, they published revised guidelines. Any irritation about lack of notice was overcome by the good sense of their revised interpretation.

These latest, and hopefully last, guidelines attempt to address the confusion regarding the level of consent required before a cookie can be placed on the computer of a visitor to a website.

The ICO’s initial explanation is that “while explicit consent might allow for regulatory certainty . . . this does not mean that implied consent cannot be compliant."

The ICO then goes on to give examples. “For implied consent to work there has to be some action taken by the consenting individual from which their consent can be inferred. This might, for example, be visiting a website, moving from one page to another or clicking on a particular button."

The only limitation was that: ". . . the individual has to have a reasonable understanding that by doing so they are agreeing to cookies being set."

This clarifies matters for email marketing. It would seem that for compliance you need to tell visitors to your website that you use cookies. There is an assumption of a low level of knowledge amongst internet users of cookies and to address this you should provide information or a link to such, on cookies in general, the specific ones you use and how visitors to your site may disable cookies. 

The ICO has taken a very lenient view of the PECR, one that does not comply with that of the European Commission, so things might change in the future. However at the moment the email marketing community can breathe a sigh of relief. Information, our lifeblood, will not be restricted unduly.



30 days full functionality - No credit card required - INSTANT ACCESS