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Did You Get Consent (before you sent that email)?

14 Jul 2016

Despite the fact the NZ anti-spam laws came into effect during 2007, we often find there's still great confusion amongst business owners around when they can legally send a commercial email or not. When we respond to unsolicited commercial emails (aka emails for which no consent exists) which we've been sent we often hear the excuse 'but we're just trying to grow our business and we can't do that if you don't know we exist!' and while it's a valid point, it doesn't change the fact that it's still against the law.

Or the fact that by breaking the law those businesses are not only risking annoying potential new clients, but also fines and/or jail time.

The good news is that you can still use email to legally grow your business, you just have to understand when you can email someone and when you can't.

Express consent is your best friend

It's important to keep in mind that if there is ever a spam complaint made, the law requires you to be able to prove the consent model which applied when that subscriber was added to your mailing list. The strongest type of consent that you can get is express consent; this is the one where a subscriber has had to perform an action to say that they would like to receive your emails.

On an ecommerce website you can obtain express consent by having a 'join our mailing list option':

  • during your checkout process
  • when a new account is created
  • when an existing account is edited
  • via a pop-up when a customer has been on a page for a certain amount of time, or closes a page
  • sitting under your category / sub-category navigation bar on your products page
  • in your blog section
  • you can also include a link to join your mailing list within any emails that your store sends out (for instance order received, product shipped notices)

You can also ask customers to sign-up via

  • social media plugins (for instance MailChimp has easy to use plug-ins for Facebook)
  • a paper form or tablet app (if you're at a market, trade show, expo etc)
  • a phone call (if you happened to be talking to them)
  • email (if you were emailing them about their order, you could ask if they would like to sign up)

Whenever you ask someone to join your mailing list, make sure you make it clear what the benefits of joining actually are. For instance will they receive advance warning of up-and-coming sales, will they have access to exclusive products that aren't available to the general public, do they receive discount codes etc.

Inferred consent is a little trickier

The law allows for consent to be considered as being given if there is a reasonable expectation that you will contact a person, but they haven't implicitly said that they want to hear from you. This type of consent is limited and quite specific, so for ecommerce stores it's safest to use it for your current customers only. Keep in mind that a "current customer" is defined by the mailing platform that you are using. Campaign Monitor allows you to add customers who have purchased off you within the last 2 years, whereas MailChimp only provides a 9 month window. For all other platforms, make sure you check their T&C's.

And here's where it gets tricky...inferred consent is limited in it's application as well.

What this means is that when a customer purchases an item from your ecommerce store, they are providing their email address with the general expectation that you will contact them in regards to their order. So you are free to send them emails which say that you've received their order, that their order is being packed, with the courier delivery number, a follow-up for feedback etc, but there is a grey area around whether this consent extends to placing them on your general mailing list and sending out emails telling them about up-and-coming specials.

Our advice is to make sure that your ecommerce store has sufficient collection points to gather express consent and then only use inferred consent to contact them regarding their order. The reality is that if a customer hasn't signed up to your mailing list themselves, they probably don't want to be on it.

But, there's nothing stopping you emailing customers explaining the benefits that they can gain by being on your mailing list and asking them if they wish to join it.

Deemed consent is the most likely to trigger spam complaints

Deemed consent tends to be the one which lands most companies in trouble because a business owner wrongly assumes they have consent when they don't.

You have deemed consent when someone has published their work related email address in a public space (like on their website) UNLESS they have also published a statement saying they don't want to receive unsolicited commercial emails. But this type of consent DOESN'T mean you can email just anyone. This type of consent can only be used to send an email which is relevant to the duties of the person it's being sent to.

You have deemed consent if:

For instance your ecommerce store sells organic cleaning chemicals, then it's okay to directly email a person who you 100% know for a fact is in charge of purchasing the cleaning products for that business, assuming their email address has been published in a public space (like on their website).

For instance your ecommerce store sells HR training manuals, then it's okay to directly email their HR department, if that email address is available publicly.

You don't have deemed consent when:

For instance, your ecommerce store sells gift baskets and you send an email to a generic business address like ecom@shardwebdesign.co.nz, or sales@mybusinessname.com. You cannot be 100% sure that the person that checks these email addresses would be responsible for purchasing gift baskets for their clients, so therefore you cannot send an email to them.

For instance your ecommerce store sells HR training manuals and you have to ring a company to find out the email address for their HR department. If their email address is not publicly available (for instance on a website, in an advertisement or magazine), then you cannot send an email to them.

You also don't have consent whenever the email address is accompanied with a note that they do not wish to receive unsolicited commercial emails.

If you have any questions regarding email consent and how to make sure you're doing it legally, please send us a message; we're only to happy to help!

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