Launching email advertising campaigns without due attention to user consent poses serious risks, both reputational and financial.
There is no clear answer to the question of how consent to send advertising messages should be obtained. Even the FAS in its decisions draws attention to the fact that the law “On Advertising” does not define the procedure and form for obtaining the subscriber’s preliminary consent to receive advertising.
We want to protect our partners from potential problems. To do this, we share not only relevant advice on this topic, email newsletters to but also our own experience of participating in a similar precedent.
Why do I need consent to email newsletters?
Consent to email newsletters is not just a formality. It is your confidence that you are not breaking the law and not annoying people. Collected consent says: “I agree to receive letters and am ready to read them.” Without this consent, you are a spammer, and your letters will be sent to the trash or, even worse, complaints about you will fly to Roskomnadzor or similar bodies in other countries.
In Russia, sending out emails without consent is a violation of the law “On personal data” and “On advertising”. In Europe, the GDPR is in effect, which regulates the handling of personal data even more strictly. If you don’t want fines and reputational losses, follow the rules:
- Be clear about why you are collecting emails.
- Get explicit consent.
- Make sure the person understands what they are signing up for.
Penalty for spam mailing
In accordance with Article cayman islands email list 26689 contact leads for illegal advertising activities, the company faces an administrative fine of 100 to 500 thousand for each complaint . At the same time, in accordance with Part 1 of Article 18 of the Federal Law of March 13, 2006 N38-FZ “On Advertising” (hereinafter referred to as the Advertising Law), the distribution of advertising over telecommunications networks is permitted only with the prior consent of the subscriber or addressee to receive advertising . In accordance with the Letter of the FAS Russia “On the application of new provisions of the Law on Communications to assess the legality of advertising mailings” , such consent must be expressed “by [the subscriber] performing actions that clearly identify this subscriber and make it possible to reliably establish his or her expression of will to receive the mailing.
Simply put, the user must explicitly consent to receive advertising from the distributor. Let’s talk in more detail about what actions should and should not be taken to stay within the legal field when communicating with clients. Let’s consider the most common offenses of advertisers that can be the basis for a complaint.
Clarify what you are agreeing to
Each retailer has several types of email newsletters: transactional, trigger and advertising, daily and weekly, promotional and content, etc. The client may be interested in only some of them, and he has the right to choose which ones. Or maybe he only wants to make a purchase, without receiving newsletters at all.
Sometimes stores force the user to check the box “I agree with the terms of service” without specifying what is included in these services and without giving the user the opportunity to refuse unnecessary items. That is, the user by default assumes obligations that he does not know about and cannot refuse.
In this case, the buyer purchased a video camera in an online store with consent to the processing of personal data. However, as the supervisory authority established, the client “expressed consent specifically to the processing of his personal data, which does not indicate his expression of will to receive advertising from a specific sender of advertising.”
Separate the purchase from the consent to receive the newsletter
Automatic subscription when purchasing a product, even with the ability to unsubscribe in your personal account or in the letters themselves, is also a direct violation of user rights. For example, the Moscow UFAS”the recipient’s consent must be obtained for the distribution of advertising, and the responsibility for proving the existence of such consent is imposed on the advertising distributor” , adding that consent “must be clearly expressed and cannot be executed in the form of consent to receive any other information” .
From this, the regulator concludes that when placing an order on the website, confirming their agreement with the terms of the offer, the user is effectively deprived of the opportunity to refuse the distribution of advertising to them.
Make sure the user clearly understands that they are subscribing to an email newsletter
Pay special attention to checkboxes. Users should understand that they can agree or refuse advertising mailings. Use unambiguous wording . It is better to write “I agree to receive advertising mailings” than “I want to receive company messages”. Information mailings and advertising are different things. Perhaps the user is ready to subscribe to news, but does not agree to receive advertising.
Don’t leave the checkbox pre-filled. Many people simply ignore the checkboxes, thinking that these items are mandatory for placing an order (while some companies actually make such consent a mandatory item, which is a direct violation of user rights).
“It should be noted that the right granted to the distributor of advertising to obtain the subscriber’s consent in any form does not indicate his unlimited discretion in resolving this issue and ends where the rights of subscribers to express their direct consent to receive advertising begin.”
That is, despite the fact that the law does not establish clear requirements for how consent to receive advertising should be obtained, the FAS will side with the user if it sees an infringement of the subscriber’s rights to direct and voluntary consent.
Provide an option to unsubscribe from the mailing list
In each letter and in the personal account, the user should have the opportunity to refuse to receive advertising messages literally in one click. The more steps and obstacles a person encounters on the way, the more negativity he accumulates, and the higher the likelihood that he will eventually write a complaint to the FAS.
Excerpt from on case No. R 24-06/16 dated August 16, 2016 in the Moscow UFAS. For example, one of the large retailers, when clicking on the “Unsubscribe” link in letters. Redirects to the personal account page, requiring first to enter a login and password. And only then allows access to the unsubscribe page. This cannot be done, because the user may get confused. In the logins and passwords from the personal account.
How to prove that the subscription to advertising messages is voluntary?
It is not enough to simply obtain the user’s consent to subscribe. You also need to be able to prove the fact of obtaining such consent in case questions arise from regulatory authorities.
According to advertising and developing companies , “advertising is considered to be distributed. Without the prior consent of the subscriber or addressee. Unless the distributor of the advertisement proves that such consent was obtained.”
Therefore, the proof of receiving the user’s consent lies with the advertiser. And in the absence of it, the company may face a fine. Keep log files (text files containing the history of user interactions with the site and mailings) for each subscriber.
We also recommend regularly downloading clients who have unsubscribed. From the mailing list and adding their addresses to the “block list”. This way you will protect yourself from accidentally sending a letter. To a user who has unsubscribed from your advertising messages.
Retail Rocket’s Experience: A Precedent for Service Companies
A client of a large online store contacted the FAS with a complaint about advertising. Email newsletters, which he did not consent to receive. Since the newsletters were sent via the Retail Rocket platform. The FAS involved our company as a party in the case of violation of advertising legislation.
This precedent is important not only for us, but for all service companies. If an email distribution platform were recognized as a distributor of unwanted. Advertising on par with a retailer, all market players would be at risk.
In accordance with shopping data , the advertising distributor is responsible for violating. The requirements established by Part 1 of Article 18 of the Law “On Advertising”. Accordingly, the company that is recognized as the advertising distributor during the consideration of the case will be held liable. And it is extremely important that the platform is not recognized as such. Since it only provides technical capabilities for distributing advertising messages.