a) the recipient of the email has previously notified the member that they consent, for the time being, to receive such communications, for example, by having ticked an opt-in box
b) the member clearly states its identity or the identity of the person on whose behalf such communication is sent (the recipient of such communication must be able to clearly identify that the email is a commercial communication and identify the advertising company on receipt of the email so they may delete the communication without having to open it) and
c) the member has provided the recipient with an unsubscribe mechanism, such as a return email address, to which unsubscribe requests can be sent.
Unsolicited email marketing - existing customer exemption
14.10 Members may send or instigate the sending of unsolicited commercial communications via email without the explicit consent of individuals provided all of the following conditions are met:
Obtaining an email
address a) the member has obtained the email address in the course of selling or negotiating to sell goods or services to the individual (i.e. the individual is a customer of the member) and
Content of emails b) the commercial communication only relates to similar products or services sold by the member and
Opportunity to object c) the member provides a simple means of enabling the individual, without charge, to refuse the use of their email address for such purposes, both at the time the email address was first collected (i.e. an opt-out box) and, where the individual initially allows the use of their email address for such purposes, on each and every subsequent email message (i.e. a return email unsubscribe mechanism) and
Identity d) the member has not disguised or concealed its identity or, where the member is sending out an email marketing campaign at the instigation of an advertiser, the identity of the advertiser on whose behalf the communication is sent.
Charity donors 14.11 Making a donation to a charity does not in itself make the individual an existing customer.
B2B marketing 14.12 Unless they have prior consent, members must not send marketing communications to business email addresses for goods or services that the recipient would only purchase in an individual capacity. However, members may send unsolicited emails to staff of limited companies, public limited companies and government and other local authority organisations provided:
a) they have taken reasonable steps to ascertain that the recipient is not an Individual (as defined in para 14.4 above)
b) the goods and services marketed are restricted to those that the recipient would purchase when acting in a professional capacity, and
DIRECT MARKETINGCODE OF PRACTICE
c) the recipient is offered a simple mechanism by which to unsubscribe/opt-out of receiving further email marketing messages from the sender.
Members must not send unsolicited email marketing messages to partners/staff of a partnership or a sole trader and its staff unless the requirements of paras 14.7 and 14.10 above are met.
Identification of
communication 14.13 Commercial communications sent by email, whether solicited or unsolicited, must be clearly identifiable as such to the recipient at the time of receipt of the communication.
In-house suppression
file 14.14 Members marketing via email must operate and maintain an in-house suppression file, listing recipients who have indicated that they do not wish to receive further commercial communications via email (see paras 5.80 to 5.84 above). Members must screen email-marketing lists against in-house suppression files prior to each email marketing campaign.
e-MPS 14.15 Members should screen their data against the email Preference Service (eMPS) file when they are conducting cross-border email marketing campaigns outside the European Economic Area (EEA). Connection to web 14.16 Where a commercial communication directs recipients to a related
website, members must comply with the provisions of Section 19 of this Code on On-Line Commercial Communications.
Distance Selling Regulations Contact details
14.17 All offers sent by email (i.e. email communications that are the final written advertised stage in a process that allows individuals to buy products or services without the buyer and seller meeting face to face) must comply with the Consumer Protection (Distance Selling) Regulations 2000 and must include the information required by paras 6.23-6.33 above. In particular, members must ensure that the advertiser's full name and address are included outside any written response mechanism so that they can be retained by the recipient.
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Definitions
Individuals 15.1 "Individuals" are consumers, sole traders, and (except in Scotland) partnerships.
Subscribers 15.2 "Subscribers" are all potential recipients of a direct marketing fax message including individuals and corporate subscribers.
General Rules
Scope 15.3 This Section of this Code applies specifically to commercial communications sent via fax. It applies to all members, including charities or other voluntary organisations.
Code compliance 15.4 Members sending commercial communications via fax must comply with this Section and with the Code as a whole. In particular, members must ensure that the content of any fax marketing communication complies with Sections 6, 7 and 8 on the Content of Commercial Communications and with Section 5 on Data.
Fax Scanning 15.5 A common variant of number scanning is fax scanning where a call is made to determine the presence of a fax receiver at the terminating end. This activity is motivated by the commercial value of a directory of validated fax numbers. Fax scanning is considered by Ofcom to be a persistent misuse of a communications network or service and therefore a breach of the Communications Act 2003 and Ofcom has powers to take enforcement.
Restriction of Contacts
Consent for faxes 15.6 Members must not send direct marketing communications via fax to an individual unless that individual has previously notified the sender that they consent to receive such communications.
FPS 15.7 Members must not send unsolicited direct marketing communications via fax to any subscriber who has previously notified the member that they do not wish to receive such communications or who has registered their fax number with the Fax Preference Service (FPS). In-house suppression
file 15.8 Members must therefore operate and maintain an in-house suppression file, listing subscribers who have indicated that they do not wish to be contacted by fax (see para 5.81 above).
FPS cleaning 15.9 Members must also ensure that no list is used for unsolicited fax marketing purposes unless it has been cleaned against the Fax Preference Service (FPS) file within the previous 28 days. Members may use their own list (i.e. a list of those with whom they have an established relationship) without cleaning against the FPS file, as long as the subscriber has provided their fax number and it is made clear that the number may be used for fax marketing purposes (see para 5.96 above).