You can’t rob a bank to pay your taxes

I was recently sitting in a client meeting with Acme Roadrunner Rockets (clearly not a real company) discussing their email database. Acme’s compliance department had asked all areas of the business to review the data they currently hold, with a view to deleting data that was no longer needed. This review highlighted the difference between the total number of people on the database and the number of people who could be sent marketing emails.

As these discussions frequently do, the conversation came around to the idea of sending out a ’service‘ or ’transactional‘ message to the entire database to confirm the recipient’s data and perhaps some of those people who were not currently marketable would subscribe to Acme’s email program…”or maybe we could ask them?” suggested the Acme Marketing Director. “After all, consumers have the right to know what data we hold on them, so we are just doing them a service in letting them know about the data we are storing AND our emails contain offers which are beneficial to the consumer, so this whole email is a service message, right?”

Based on the number of times I have had this discussion, I suspect that most email marketers have been involved in similar conversations at least once in their careers. This seems like such an obvious approach that it is often tough to convince the Marketing Director why this is such a bad idea. Thankfully, the UK Information Commissioner has just made that discussion a lot easier, but more on this later.

First, I would like you to look at this situation from the perspective of the recipient. There are really only two ways that someone on your database is unmarketable via email. Either you do not have a valid email address for that record in which case you cannot email them anyway, or you do not have permission to send marketing emails (either they have withdrawn their consent or you never got it in the first place). It is this second group that you would be targeting with this ’service‘ email.

Let’s forget the content of this message for a second and think about how you would react, or maybe the better way to ask is how DO you react when you hear from a brand to whom you know you never opted-in or, probably worse, remember opting-out? You probably react pretty badly. You are in the business and you know that they should not be sending you email, so you might be a bit more irritated than the average consumer but that does not mean that other consumers will not react badly.

First, they are going to wonder where you got their data and then, if they do not assume that your message is spam and actually open it, you are showing them that you actually hold a lot of their data. If the email itself didn’t bother them, the contents will freak them right out.

The negative brand impact of this scenario should be enough to convince pretty much any Marketing Director that this is a bad idea but as I said, the idea seems so obvious they always try to ’solve the problem’ or ‘come at it a different way,’ which results in a long circular conversation that never really gets anywhere good.

Luckily, the ICO has helped us out here. They recently fined two brands that sent emails to people in their databases, despite them stating that they didn’t want to receive marketing emails. Flybe was found to have sent more than 3.3 million emails with the subject ‘Are your details correct?’ which gave recipients the opportunity to correct any details that were out of date and offered entry into a sweepstakes for updating their preferences. Similarly, Honda Motor Europe sent almost 290 thousand emails to ‘clarify’ the permission status of the recipients.

In announcing the fines, the ICO Head of Enforcement said:

“Both companies sent emails asking for consent to future marketing. In doing so they broke the law. Sending emails to determine whether people want to receive marketing without the right consent is still marketing and it is against the law.”

“In Flybe’s case, the company deliberately contacted people who had already opted out of emails from them.”

The law in Europe is pretty straight forward: email marketing is an opt-in channel. If you do not have that opt-in, you cannot send the email.

This does make perfect sense if you think about it. How can you possibly use email to find out if somebody wants to receive email? This is the marketing equivalent of my daughter starting a conversation with, ‘can I ask you a question?’

The meeting I had with Acme Roadrunner Rockets will be repeated countless times up and down the country over the next 392 days. That is the time we have until GDPR becomes law and marketers will be looking to get and confirm consent for various marketing activities. As the ICO points out however, you cannot violate one law to prepare for another law. In other words, you cannot rob a bank to pay your taxes.

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