Marketing texts and emails

The general rule is that marketing texts and email can be sent only with consent - we can generally only send marketing texts or emails to individuals (including sole traders and some partnerships) if that person has specifically consented to receiving them. Indirect consent (i.e. consent originally given to a third party) is unlikely to be sufficient.

The same rule applies to any marketing sent by ‘electronic mail’, which is defined in PECR as: “any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service”.

In other words, the same rules will apply to any electronically stored messages, including email, text, picture, video, voicemail, answerphone and some social networking messages.

The rules also still apply to viral marketing – organisations will still need consent even if they do not send the messages themselves, but instead instigate others to send or forward them.

Organisations must not disguise or conceal their identity in any marketing texts or emails, and must provide a valid contact address for individuals to opt out or unsubscribe (which would mean consent was withdrawn). It is good practice to allow individuals to reply directly to the message and opt out that way, to provide a clear and operational unsubscribe link in emails or at least to provide a freephone number.

Existing customers: the ‘soft opt-in’ - although organisations can generally only send marketing texts or emails with specific consent, there is an exception to this rule for existing customers, known as the ‘soft opt-in’. This means organisations can send marketing texts or emails if all of the below are satisfied:

(1) they have obtained the contact details in the course of a sale (or negotiations for a sale) of a product or service to that person;

(2) they are only marketing their own similar products or services; and

(3) they gave the person a simple opportunity to refuse or opt out of the marketing, both when first collecting the details and in every message after that.

In addition, the texts or emails must be marketing products or services, which means that the soft opt-in exception can only apply to commercial marketing. Charities, political parties or other not for-profit bodies will not be able to rely on the soft opt-in when sending campaigning texts or emails, even to existing supporters. In other words, texts or emails promoting the aims or ideals of an organisation can only be sent with specific consent (this will be relevant in the context of the College as a charity).

The contact details must be obtained directly from the individual by the organisation who wishes to engage in the marketing and the marketing must be in relation to that organisation’s similar products and services. Therefore the soft opt-in can only be relied upon by the organisation that collected the contact details. This means organisations cannot rely on a soft opt-in if they obtained a marketing list from a third party – they will need specific consent.

The customer does not actually have to have bought anything to trigger the soft opt-in. It is enough if ‘negotiations for a sale’ took place. This means that the customer should have actively expressed an interest in buying an organisation’s products or services – for example, by requesting a quote, or asking for more details of what it offers.

Business-to-business texts and emails - these rules on consent, the soft opt-in and the right to opt out do not apply to electronic marketing messages sent to ‘corporate subscribers’ which means companies and other corporate bodies e.g. limited liability partnerships, Scottish partnerships, and government bodies. The only requirement is that the sender must identify itself and provide contact details.

Beware that many employees have personal corporate email addresses (e.g., and individual employees will have a right under data protection legislation to stop any marketing being sent to that type of email address.