Before Christmas 2003 is upon us, the UK will bring into effect new legislation that will change the email marketing strategy of many businesses. It's indeterminant exactly what will happen with the remaining businesses that fail to comply, but we shall all know soon after the legislation comes into effect.

The EU has recognised the threat posed by spam against one of the cornerstones of Internet communication. Sources such as Postini report worldwide percentages of unsolicited commercial email (UCE) 70 - 80% and most experts will agree that the actual percentage is well over 50% with the cost to EU businesses at €2.5 billion in 2002. It's little wonder why legislation has been pushed as a priority, but does this necessarily mean the death of Internet marketing as we know it?

Well, if we're talking in terms of global spam then it's doubtful. Until such legislation is in effect on a worldwide scale spammers and scammers will continue to elicit the services of non-cooperative states in order to market their wares.

For legitimate EU businesses the new legislation will mean a stricter approach to mailing list take up will be required as previously, respondents would have had to opt-out of any proposed scheme. From 11/12/2003, it will be a requirement to have confirmed opt-in.

So what does the new legislation look like then?

In it's raw form it's quite a read. I'd suggest a strong cup of coffee if you're planning on working your way through it all in one session.

The paragraphs most pertinent to email marketing are 22 and 23:

Use of electronic mail for direct marketing purposes

22. - (1) This regulation applies to the transmission of unsolicited communications by means of electronic mail to individual subscribers.

(2) Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.

(3) A person may send or instigate the sending of electronic mail for the purposes of direct marketing where -

(a) that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient;

(b) the direct marketing is in respect of that person's similar products and services only; and

(c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.

(4) A subscriber shall not permit his line to be used in contravention of paragraph (2).

Use of electronic mail for direct marketing purposes where the identity or address of the sender is concealed

23. A person shall neither transmit, nor instigate the transmission of, a communication for the purposes of direct marketing by means of electronic mail -

(a) where the identity of the person on whose behalf the communication has been sent has been disguised or concealed; or

(b) where a valid address to which the recipient of the communication may send a request that such communications cease has not been provided.

This basically means a number of things for an Internet marketer:

• You may not send email for direct marketing purposes to a recipient unless they have explicitly provided consent to receive any such mailing.
• The exception to the above rule is that you may send the same email to the recipient if you have already acquired their email address from a previous business transaction with you and that the email is promoting a similar product or service.
• At the time when the email address was collected you provided and continue to provide a simple and free means for the recipient to opt-out of any further mailings.
• You must clearly identify yourself in any mailings.
• All emails must contain a valid reply address.
• All emails clearly identify who is responsible for the mailing and on whose behalf it's being sent.

Those with websites collecting contact details for future marketing purposes need to ensure that explicit consent is obtained from the intended recipient before any mailings are sent out. Having an opt-out checkbox next to a submission form is not going to be sufficient any more. Fortunately, there are many capable subscription systems that can be implemented without too much bother.

Those who make use of third party mailing lists now need to be concerned about how those lists are populated or else be at risk of being caught up in any backlash that may follow.

How does your list stand up? Have all of your 'subscribers' explicitly opted-in (and can you prove it?) or have they accidentally fallen into the list?

Now is a good time to find out!