We have mentioned the Information Commissioner’s Office (ICO) Guidance on here before, and will do so again. It contains fundamental changes for bulk email marketing and the most important of these is how the ICO will view consent in future.
No longer will consent be ongoing, not that it was ever open-ended before, but now we are being told that there are time limits to consent. Ticking the box to subscribe to your email marketing list will contain an implied “best before date”. Just to make things easier for us, the time limit will vary depending on the specific circumstances of consent.
The ICO gives examples but they are far from specific. It suggests that particular care should be exercised in certain cases. For instance:
When the data subject gives consent to marketing as part of signing up for a service
Where consent is given to receive messages about a particular product launch
Where there is any significant change in circumstances
Indirect consent, such as a rented email marketing list
With indirect consent the ICO suggests a six month time limit, this to run from the date that each person on the email marketing list subscribed, so the delay in getting finally through to you is to be taken from the six months.
With regards to the other three scenarios a little bit of preventative maintenance could well turn out to be very useful. The ICO might consider that an opportunity extended to a subscriber to be removed from the list will cover the provisions with regards to the time limits.
If, as a subjective time limit approaches, you add to a marketing email box that they can tick if they wish to unsubscribe from your email marketing list, something more prominent than the one required by law, or even a dedicated email without any offers, then any failure to tick the box may well be considered to be enough, although proof that the email was opened would help here.
What is not covered is when you have a customer who regularly buys from email marketing campaigns. This, I would suggest, gives implied consent to continue to remain on your lists. Some direction from the ICO might be helpful here.
