Marketing

The current law on opt-in and opt-out B2B email marketing in the UK post-Brexit

In May 2018, the old rules governing opt-out B2B email marketing changed in the UK were replaced following the introduction of the General Data Protection Regulations (GPDR).

But what actually changed? It turns out not so much as we’ll describe in this article.

I’m sure you remember receiving endless streams of emails from companies whose newsletters you’d subscribed to or from which you’d already purchased asking you for permission to stay in contact with you. As the May 25th 2018 deadline drew near, there’d sometimes be a dozen or more of the emails waiting for us when we got to the office.

What this actually demonstrated was a fundamental misunderstanding of GDPR and its consequences for B2B email marketers using both opt-in and opt-out lists, according to many commentators.

Most of those emails did not need to be sent because the continued usage of those email addresses in marketing campaigns was covered by GDPR’s prescribed “legitimate interests” rule.

For opt-in emails, this is covered by Recital 47 of the regulations which states that, “the processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.” Commentators have argued that the legitimacy of continuing to email customers is self-evident – they are your customers and, unless they have told you otherwise, likely to be interested in companion products and services you offer.

What about prospects? For the purposes of this article, a prospect is classified as a business decision maker who:

  • has been in touch with your company either by leaving their details for your sales team to follow up or by subscribing to your email newsletter but
  • has not purchased any of your company’s products or services yet.

Your continued emailing of the prospects on your database is also covered by legitimate interests because, unless they have asked you not contact them again, they have already requested further information about your products and services.

What about opt-out email marketing? Can an email marketing agency sell you details of companies who have had no contact with you in the past and can they send emails to those contacts on your behalf?

The Information Commissioner’s Office (ICO) states that, as before the introduction of GDPR, “you don’t need consent if you’re marketing to a corporate subscriber. But you’ll need to say who you are and tell people how they can opt-out from receiving further marketing from you.”

What about the “legitimate interest” concern? Gifford Morley-Fletcher of MarketOne Europe stated that his company “planned to use only consent” as the basis for contacting their database but, following guidance from the ICO that “a commercial interest (intending to sell a product or service) (is) considered a valid legitimate interest under the GDPR”, they had decided to “adjust” their position.

The widespread misunderstanding of GDPR following its introduction in May 2018 led to a significant fall in the volume of emails being sent. This has had a positive effect on those companies which have continued to invest in both opt-in and opt-out email marketing however.

According to the Data and Marketing Association’s Marketer Email Tracker report, the fall in volume, together with other technical factors, has let to a 67% increase in conversion rates, click through rates up 75%, open rates up 74%, and deliverability to inbox up 67%.

On 31 December 2020, Britain left the European Union. Instead of being one of 28 member states governed by the EU’s GDPR law, the UK’s companies and marketeers are now subject to the Data Protection Act 2018 and UK General Data Protection Regulation laws (the EU GDPR still applies if you process domestic personal data and sell to (or behaviourally monitor) EU residents).

The UK law, at time of writing, is identical to the EU law and there is no indication from the Government that they intend to amend the UK version of the law in the near future.

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