Can I make use of email marketing?

Email marketing remains one of the cheapest and most effective methods of mass marketing and communication with your client database. Yet each person has a right to privacy and this right has frequently been violated in the past by callous marketers that send advertising and promotional emails to consumers without permission.

Email marketing remains one of the cheapest and most effective methods of mass marketing and communication with your client database. Yet each person has a right to privacy and this right has frequently been violated in the past by callous marketers that send advertising and promotional emails to consumers without permission. This form of unsolicited direct marketing has now been restricted by the new Consumer Protection Act (“the Act”) which establishes clear rules in respect of digital marketing. This does not result in email marketing being outlawed per se, but rather that this form of communication must comply with the requirements for lawful communication in order to not be seen as unsolicited.

In terms of the Act the sending of unsolicited email is unlawful and marketers must comply with the following minimum requirements if they wish to utilize email marketing for marketing and promotions:

  • All subscribers to the database of a business must have chosen to form part of the database and receive information or communication from the business. This is known as the “Opt-in” principle.
  • A business must be able to prove that a subscriber was provided the choice of whether to form part of the database and by consenting thereto to receive email marketing communication from the business.
  • In terms of the Act, any transaction that arose as a result of an email marking campaign is subject to a five day cooling off period which affords the consumer the right to cancel the transaction within five days of the conclusion of the transaction. Where the consumer exercises this right and there are no goods involved, the supplier must within fifteen days refund all amounts already paid to the supplier by the consumer. Where there are goods involved in the transaction, the supplier must within fifteen days of the return of the relevant goods, refund the consumer all amounts already paid to the supplier. It should be noted that certain electronic transactions possibly reside under the Electronic Communications and Transactions Act which provides for a seven day cooling off period. Legal advice may be necessary to assist in determining which act is applicable to your communication.
  • The consumer must at all times be able to deregister as a subscriber from any database. This is known as the “Opt-out” principle.
  • The Act further determines that direct marketing to ‘n consumer may only occur from Monday to Friday between 08h00 and 20h00 and on Saturdays between 09h00 and 13h00. No email marketing may occur on Sundays and Public Holidays unless the consumer has expressly consented thereto.

Note should be taken of the provisions of the Act regarding the establishment of a “no contact” register where consumers can register in order to pre-emptively block the receipt of unsolicited marketing. This register is not yet active, but it will be important for marketers to keep track of this register when it does become active.

In light of the above the following good practice guidelines are useful to assist businesses in ensuring that they comply with the Act.

  • Send an email to your database and provide the opportunity to “Opt-in” and ”Opt-out” and explain what each option entails.
  • Ensure that in all communication the option to “Opt-out” is clearly visible and functioning.
  • If the consumer “Opts-out” the consumer must automatically be removed from all the direct marketing communication channels of the business.
  • Keep a register of consumers that have “Opted-out” and ensure that no further email marketing is sent to such consumers.
  • Inform the consumer of the nature and frequency of communication that they can expect from your business.
  • As soon as the formal “no contact” register is active, ensure that your database is regularly compared with the register.
  • Inform consumers of their right to utilise the cooling off period under the Act.
  • Only send email marketing during the allowed timeframes.

By applying the above good practices you can achieve good results with your direct marketing strategy and prevent negative consequences arising due to transgressions of the Act. At the end of the day the professionalism and validity of your email marketing campaigns reflects directly on the way you do business.

For advice and assistance with the formulation of a valid email marketing strategy, consult a consumer law and information technology expert.

April 17, 2012
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