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218 Part 1 Introduction

The approach required by the law has, in
Debate 4.1 common with many aspects of data protection
How far should opt-in go? and privacy law, been used by many organiz-
ations for some time. In other words, sending
‘Companies should always use an
“opt-in” privacy policy for unsolicited e-mails was thought to be unethical
(a) e-mailing prospects and customers and also not in the best interests of the
(b) monitoring web site visitors using company because of the risk of annoying
site analysis software
(c) identifying repeat visitors using customers. In fact, the law conforms to an
cookie.’ established approach known as ‘permission
Permission marketing’, a term coined by US commen-
marketing tator Seth Godin (1999) (see Chapter 9, p. 488).
Customers agree (opt in)
to be involved in an 3 Requires an opt-out option in all communications. An opt-out or method of
organization’s marketing ‘unsubscribing’ is required so that the recipient does not receive future communi-
activities, usually as a cations. In a database this means that a ‘do not e-mail’ field must be created to
result of an incentive.
avoid e-mailing these customers. The law states that a ‘simple means of refusing’
Opt-out future communications is required both when the details were first collected and in
A customer declines the each subsequent communication.
offer to receive further
information. 4 Does not apply to existing customers when marketing similar products. This
common-sense clause (22(3)(a)) states that previous opt-in is not required if the
contact details were obtained during the course of the sale or negotiations for the
sale of a product or service. This is sometimes known as the ‘soft or implied opt-
in exception’. While this is great news for retailers, it is less clear where this leaves
not-for-profit organizations such as charities or public-sector organizations where
the concept of a sale does not apply. This key soft opt-in caveat is interpreted
differently in different European countries with seven countries, Italy, Denmark,
Germany, Austria, Greece, Finland and Spain not including it. The differences mean
that marketers managing campaigns across Europe need to take the differences in
different countries into account.
Clause 22(3)(b) adds that when marketing to existing customers the marketer
may market ‘similar products and services only’. Case law will help in clarifying this.
For example, for a bank, it is not clear whether a customer with an insurance policy
could be targeted for a loan.
5 Contact details must be provided. It is not sufficient to send an e-mail with a
simple signoff from ‘The marketing team’ or ‘Web team’ with no further contact
details. The law requires a name, address or phone number to whom a recipient
can complain.
6 The ‘from’ identification of the sender must be clear. Spammers aim to disguise
the e-mail originator. The law says that the identity of the person who sends the
Cookies
communication must not be ‘disguised or concealed’ and that a valid address to
It is important for
e-commerce managers ‘send a request that such communications cease’ should be provided.
to understand the privacy 7 Applies to direct marketing communications. The communications that the
implications of using
cookies to identify legislation refers to are for ‘direct marketing’. This suggests that other communi-
returning visitors, so in cations involved with customer service such as an e-mail about a monthly phone
Box 4.4 we present more statement are not covered, so the opt-out choice may not be required here.
details on the usage of
cookies. Cookies are 8 Restricts the use of cookies. Some privacy campaigners consider that the user’s
small text files stored on privacy is invaded by planting cookies or electronic tags on the end-user’s
an end-user’s computer
to enable web sites to computer. The concept of the cookie and its associated law is not straightforward,
identify them. so it warrants separate discussion (see Box 4.4).