E-Newsletters and Marketing

5th March 2021 Commercial Litigation

A lot of agents, along with many other businesses, send out electronic newsletters to their clients and prospective clients. These are usually sent by email with some kind of link or backup on a webpage. The content usually varies but will often consist for letting and estate agents with articles about legal changes and some form of market update. Importantly, there may also be some form of direct marketing within these emails which seeks to actively sell a specific service or product. In general, these emails have been seen as acceptable for data protection purposes under the GDPR as it is commonly accepted that marketing to existing clients or those people you have an existing relationship with is covered by the “legitimate interests” processing basis. Therefore, sending people messages of this type is not prohibited provided they have a reasonable connection with what you have done for them already and they are provided with an option to “opt-out” of future similar messages. In practice, a lot of organisations use some form of “opt in” by seeking consent for such newsletters.

However, if emails contain marketing material they are not just dealt with by the GDPR. They may also be regulated by the Privacy and Electronic Communications (EC Directive) Regulations 2003 (commonly known as PECR). In a recent decision of the Upper Tribunal it has been held that electronic newsletters which also contain marketing information then both the GDPR and PECR are engaged and the basis of the newsletters will need to be carefully considered.

The Tribunal decision relates to material sent by the Leave.EU campaign which was funded by Aaron Banks. There has been some criticism of Leave.EU because it was closely connected with Mr Banks main business, Eldon Insurance which trades as GoSkippy. The data of the two separate organisations, it has been argued, were not always properly separated.

However, this specific appeal was related to a series of marketing emails, sent by Leave.Eu about aspects of its campaign. These emails also had elements in them of advertising for Eldon with information about discounts on GoSkippy products. Without going into detail, the Tribunal held that these were not acceptable under PECR. PECR relies on the GDPR notion of consent for the giving of consent to marketing. This must be feely given, specific and informed. It was found that Leave.EU had not obtained informed consent to marketing emails from GoSkippy because the consents they were seeking to rely on were so all-encompassing as to deprive them of any element of specificity. The fact that the marketing for GoSkipy was within a larger newsletter did not stop it being direct marketing and did not stop if falling within the remit of PECR, especially as it was not connected with the main purpose of the newsletter.

This is a really important decision as many online newsletters actually contain a mixture of information and clear marketing material. It seems that it is acceptable to have marketing within your newsletter as long as it is directly connected with the core purpose of the newsletter. However, if the marketing is not connected to the main purpose of the newsletter, especially if it is coming from other organisations then this is likely to engage PECR. In that case it is important that the e-newsletter has been sent with consent and that this consent is appropriate for the purpose of the marketing. In practice, a lot of consents are unlikely to meet the test as they simply say that other marketing material “of interest” can be sent. It is likely that a consent to add marketing to an e-newsletter would need to be more specific as to what sort of marketing might be sent and from what type of organisation. There would also need to be consideration given to whether people could opt to receive the newsletter without marketing material which would probably be necessary to give the proper approach to the consent.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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