Email and the Law

Reasons to be reasonable

We have mentioned before that if you are running a competition with prizes in your email marketing campaign then you should take extreme care. Quite apart from falling foul of the complex betting, gaming and lotteries legislation, which is all too easy to do, there is the added problem of being fair.

The word fair has been of some concern to the various enforcement agencies over recent weeks and so it should be your concern as well. The premier one was the EU Court of Justice no less which looked at five prize promotions, all of which had one feature in common.

The idea was basically to give rise to the belief in customers that they had won a prize but there was a cost incurred if they wanted to claim it. In essence, they had won nothing until such time as they contacted the company. In one instance a prize of a Mediterranean cruise would mean the ‘winner’ having to pay insurance for a delivery, transfers to and from the embarkation point and for food and drink. There were other fees as well.

Whilst the company mounted a strong defence, the court was of the opinion that they were exploiting the psychological effect of being notified of winning which might obscure the notification of the strings that were attached.

The most significant decision from the point of view of email marketing was that the court stated that if there is cost involved in taking any action in claiming a prize then it contravened the regulations. This included the cost of a stamp.

Many might feel that the de minimus rule might apply, even given the price of a stamp, as it did not benefit the promoter. The court felt it was still aggressive as there was an exploitation of the likelihood of the ‘winner’ using the quickest method of finding out, even though this might be the most expensive. 

Whether or not you use prizes in your email marketing, there is a very clear message here. Clear and concise wording of offers is essential and you must not exploit your customers in a way that might be seen as unfair.



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